The transmission of a protected work as evidence to a court is not a 'communication to the public'
23-03-2021 Print this page
The transmission by electronic means of a protected work to a court, as evidence in legal proceedings between individuals, cannot be regarded as a ‘communication to the public’: the protected work is received by a clearly defined and closed group of persons.
BY and CX are both natural persons, each of whom operates a website. In litigation before the Swedish civil courts, CX sent to the court seised, as evidence, a copy of a page of text containing a photograph, which page was taken from BY's website. BY is of the opinion that its copyrights on the photo have been infringed.
The referring court is asking whether a court may be regarded as falling within the concept of 'public' within the meaning of Article 3(1) of the Copyright Directive.
The Court considers that there is a communication for the purposes of Article 3(1) of the Copyright Directive where a protected work is transmitted by electronic means to a court as evidence in judicial proceedings between individuals. The concept of ‘public’ refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons. In the present case, the communication must be regarded as referring to a clearly defined and closed group of persons holding public service functions within a court, and not to an indeterminate number of potential recipients. Therefore, the Court considers that the transmission by electronic means of a protected work to a court, as evidence in legal proceedings between individuals, cannot be regarded as a ‘communication to the public’ within the meaning of Article 3(1) of the Copyright Directive.
