There is no communication to the public in case of photo disclosed to a court as evidence

The Advocate General of the European Court G. HOGAN has given an opinion in case  C‑637/19 BY v CX. This case concerns the following background:

BY and CX are both natural persons each of whom operates a website. In the course of a prior dispute before the civil courts, CX sent a copy of a page of text, including a photograph, from BY’s website as evidence in the underlying court proceedings. The photograph accordingly forms part of the documentary record in the proceedings.

BY claims to hold the copyright to that photograph and asks that CX be ordered to pay damages, first, for infringement of copyright and, second, for infringement of the special protection conferred on photographs by Article 49a of the Law on Copyright. CX contests any obligation to pay damages and maintains that the disclosure of the material for the purposes of the court proceedings did not amount to a copyright violation.

At first instance, the Patent- och Patent and Commercial Court, Sweden held that the photograph was protected by rights related to copyright, that is to say, by the special protection conferred on photographs. That court found, however, that because the photograph was transmitted to it as a procedural document, any third party may request communication of the photograph in accordance with the applicable provisions of Swedish constitutional law on access to documents. Although the Patent- och Patent and Commercial Court concluded that CX had distributed that photograph to the public within the meaning of the Law on Copyright, it considered that it had not been established that BY had suffered damage and, accordingly, dismissed its application.

BY appealed that judgment to the referring court.

The referring court considers that it must rule in particular on the question of whether the forwarding of a copy of that photograph to a court as a procedural step constitutes an unlawful making available of the work within the meaning of the relevant national copyright legislation, either as a distribution to the public or as a communication to the public.

It is not in dispute that the photograph was sent electronically (by email) to the court hearing the dispute between the parties in the form of an electronic copy. The national court is also seeking to ascertain whether a court may be regarded as falling within the concept of ‘public’ for these purposes.

The referring court points out that there is uncertainty as to the interpretation in Union law of the concepts of ‘communication to the public’ and ‘distribution to the public’ in the case of a transmission to a court in the course of civil proceedings of a copyright-protected work. This raises the question of, first, whether a court may be regarded as falling within the concept of ‘the public’ within the meaning of Directive 2001/29 and, second, whether the term ‘public’ must be given the same meaning in the context of the application of Articles 3(1) and 4(1) of Directive 2001/29.

In that regard, the referring court notes that the Court has held that the concept of ‘public’ refers to an indeterminate number of potential addressees and involves, moreover, a fairly large number of persons. It further emphasised that the aim is to make a work perceptible in any manner appropriate to ‘persons in general’, as opposed to specific persons belonging to a private group. (5)

It is also apparent from the case-law of the Court that the concept of ‘distribution’, within the meaning of Article 4(1) of Directive 2001/29, has the same meaning as the expression ‘making available to the public … by sale’ within the meaning of Article 6(1) of the WCT. It would appear, however, from the judgment of 13 May 2015, Dimensione Direct Sales and Labianca (C‑516/13, EU:C:2015:315), that for there to be ‘distribution to the public’ it is sufficient that the protected work has been delivered to a member of the public.

It is also necessary to ascertain whether, where a procedural document is transmitted to a court, either in the form of a physical (paper) document or as an attachment to an electronic mail, it is a ‘communication to the public’ or a ‘distribution to the public’, since such transmission produces the same effects and has the same purpose in both cases.

The referring court considers that neither that court itself nor the members of its staff could be regarded as constituting the ‘public’ in the general sense of the term. They could not, however, be regarded as belonging to a private group.

Moreover, according to the referring court, while the number of persons who, following transmission, have access to the work is certainly limited to the court’s staff alone, that number would necessarily be variable and should be regarded from the outset as high. Finally, national law provides that anyone has a right of access to documents received by a court.

In those circumstances, the referring court stayed proceedings and referred the following questions to the Court for a preliminary ruling:

‘(1)  Does the term “public” in Articles 3(1) and 4(1) of Directive [2001/29] have a uniform meaning?

(2) If question 1 is answered in the affirmative, is a court to be regarded as falling within the scope of the term “public” within the meaning of those provisions?

(3) If question 1 is answered in the negative:

(a) in the event of communication of a protected work to a court, can that court fall within the scope of the term “public”?

(b)  in the event of distribution of a protected work to a court, can that court fall within the scope of the term “public”?

(4) Does the fact that national legislation lays down a general principle of access to public documents in accordance with which any person who makes a request can access procedural documents transmitted to a court, except where they contain confidential information, affect the assessment of whether transmission to a court of a protected work amounts to a “communication to the public” or a “distribution to the public”?’

The Advocate’s opinion:

‘The electronic transmission by a litigant or a party to proceedings of copyrighted material as evidence to a court does not constitute a “communication to the public” or a “distribution to the public” in accordance with Article 3(1) and Article 4(1) of Directive 2001/29/EC of 22 May 2001. The mere fact that such evidence is considered a public document and that the public may thus, in principle, have access to the copyrighted material in question in accordance with national freedom of information or transparency rules does not entail that it enters the public domain and is free from copyright protection.’