Background

BY and CX are both individuals in Sweden each of whom operates a website. In the course of previous civil court proceedings, CX sent to the court, by email, a copy of a page of text that included a photograph from BY’s website as evidence.

BY sought damages from CX for infringement of BY’s copyright in the photograph.

At first instance, the Swedish court held that the photograph was protected by copyright under Swedish law and that CX had infringed that copyright by sending it to the court as a procedural document, meaning that it could be accessed by any third party requesting its communication. However, it found that BY had not suffered any damage and dismissed the case. BY appealed to the Swedish Court of Appeal, which has asked the CJEU whether the disclosure to a court by email of copyright material as evidence in the course of proceedings can amount to a communication to the public under Article 3(1) of the Copyright Directive (2001/29/EC).

Decision

The CJEU noted that under Article 3(1) the concept of “communication to the public” includes two cumulative criteria: (i) an act of communication of a work; and (ii) the communication of that work to a public.

In terms of the first criteria, the CJEU said that any act by which a user gives access to protected works, with full knowledge of the consequences of that action, is liable to constitute an act of communication for the purposes of Article 3(1). That included, the CJEU said, where a protected work was transmitted by email to a court as evidence in judicial proceedings between individuals.

As for the concept of “public”, the CJEU said that this refers to an indeterminate number of potential recipients and implies a fairly large number of persons. This means making a work perceptible in any appropriate manner to persons in general, i.e., not restricted to specific individuals in a private group.

In this case, the communication referred to a clearly defined and closed group of people holding public service functions within a court, and not to an indeterminate number of potential recipients. Therefore, the communication was made not to persons in general, but to specific individual professionals, and did not amount to a “communication to the public” under Article 3(1).

The CJEU also said that the existence in national law of rules on access to public documents was irrelevant.

The CJEU said that this decision enabled, in particular in the electronic environment, a fair balance to be struck between the interests of the copyright holders and the interests and fundamental rights of users of protected subject matter, as well as of the public interest. According to case law, it is not apparent from Article 17(2) of the Charter of Fundamental Rights or from previous case law that the right to intellectual property is inviolable and that protection of that right must therefore be guaranteed absolutely, since that right must be weighed against other fundamental rights, which include the right to an effective remedy guaranteed in Article 47 of the Charter. This right would be seriously compromised if a rights holder were able to oppose the disclosure of evidence to a court on the sole ground that that evidence contained copyright protected material. (Case C-637/19 BY v CX EU:C:2020:863 (28 October 2020) — to read the judgment in full, click here).