Questions referred to the Court of Justice for a preliminary ruling: Is the provision of a copyright protected work to the court communication to the public?
An author has the right to publish or reproduce his/her work. A form of disclosure could be when a work is made available (is communicated) to the public. This means that persons who are in a different place than where the original communication is made have the opportunity to see or hear a work. Think, for example, of a television broadcast or a radio program. To determine whether there is a disclosure, an act consisting of making a communication of a work and the communication to a public are important (ECJ EU 31 May 2016, C-117/15, EU:C:2016:379, Reha Training/GEMA, ro. 35-37).
With regard to the last element (public), preliminary questions have been referred by the Swedish court to the Court of Justice of the European Union (see the order for reference here). The Court has already ruled on this concept on several occasions. For example, the term 'public' refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons. The work must be made public for persons in general, i.e. not ot restricted to specific individuals belonging to a private group. A fairly large number of people implies that there is a certain de minimis threshold, as a result of which a small or insignificant number of persons cannot qualify as public. Finally, when determining the size of the audience, it must be taken into account that it is not only a question of how many persons can observe the work at the same time, but also how many of them have access to it in succesion (ECJ EU 31 May 2016, C-117/15, EU:C:2016:379, Reha Training/GEMA, ro. 41-44).
The reason for the preliminary questions relating to the concept of the public is a court case between two parties in which one party (party A) has submitted a screenshot of the website of the other party (party B) to the court as evidence. The screenshot contained a photograph which, according to party B, was protected by copyright. In Sweden it is possible for anyone to request all documents submitted in proceedings. According to party B, party A has therefore made the work public and B's copyright has been infringed.
The matter was finally brought before the Swedish court on appeal, which referred several questions to the Court. In essence, some of these questions boil down to one question: can a judge (and the persons working for the judge) be regarded as public within the meaning of the Copyright Directive? In this respect, the Swedish court considers that it is not clear what the Court means exactly by the indeterminacy of the public in the case of a judge. The judge (and the persons working for the judge) cannot be regarded as public (persons in general), but also as a private group (specific individuals). In addition, the group of persons consisting of the judge and his staff can be quite large.
The questions were submitted to the Court last October. If the judge were to be regarded as public, this could possibly lead to complications for Dutch case law (and in particular intellectual property law disputes). After all, Dutch caselaw is made publicly available and when copyright protected images are included in judgements, works become available to everyone. However, judgments can also be rendered anonymous and names of natural persons removed. In principle, this should also be possible for images with copyright protected works.
[JQ1]Alexandra, wil je bij de Nederlandse versie “Samenvatting artikel JutD” weghalen en als titel “Prejudiciële vragen aan het Hof: wordt met het verstrekken van een werk aan de rechter een mededeling gedaan aan het publiek?” gebruiken?