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Monday, 24 July 2017

The right of communication to the public ... in a chart

Right of communication
to the public?!
The right of communication to the public under Article 3(1) of the InfoSoc Directive has been subject to several (nearly 20) references for a preliminary ruling to the Court of Justice of the European Union (CJEU). Over time, this exclusive right has become increasingly complex, and yet absolutely topical to online exploitation of works and enforcement of relevant copyrights.

Article 3(1) of the InfoSoc Directive does not define the concept of ‘communication to the public’. This provision, in fact, only states that EU “Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.” 

Lacking a definition of the notion of ‘communication to the public’, the CJEU has sought to determine the meaning and scope of this concept in light of the objectives pursued by the InfoSoc Directive, notably to ensure a high level of protection of intellectual property (Recital 24) and for authors. 

In its rich body of case law on Article 3(1) of the InfoSoc Directive, the CJEU has consistently stated that the essential requirements of Article 3(1) are an ‘act of communication’, directed to a ‘public’. In addition, the CJEU has also highlighted the importance of considering additional criteria which are not autonomous and are interdependent, and may – in different situations – be present to widely varying degrees. Such criteria must be applied both individually and in their interaction with one another.

So, what questions should you ask yourself when addressing communication to the public issues?

As part of my student materials [see here] and inspired by mandatory summer reading, ie magazines and their relevant quizzes, I have created a little - simplified - chart on the right of communication to the public post-Ziggo [C-610/15, also known as The Pirate Bay case]. Readers will also remember that a while ago this blog published the charts prepared by Dr. Mr. Olena Butriy on the 'concept of communication to the public', which can be accessed here.

The following simplified presentation of the concept is possible based on the most recent decisions of the CJEU. If you are interested in a more extensive discussion of the requirements under Article 3(1) of the InfoSoc Directive, see this recent paper of mine here [presented here].





The chart can be also downloaded in PDF here

Any feedback and comments are very welcome!

6 comments:

The Cat That Walks By Himself (i.e. Dr.mr. Olena Butriy) said...

Dear Eleonora,

Would you think that the originality of the work should be assessed in the context of the relevant industry sector, where the work has been created, taking into account the knowledge and creativity instruments existing in that field at the moment of the work creation?


https://www.linkedin.com/pulse/letters-copyright-law-hyperlinking-content-embedding-public-butriy?trk=hp-feed-article-title-publish

Eleonora Rosati said...
This comment has been removed by the author.
Eleonora Rosati said...

Thanks for your comment. I don't think or claim to have created anything ground-breaking: I just thought of summarising and simplifying existing case law for my students and anyone struggling to understand CJEU case law on Article 3(1).

Your work is useful and the IPKat has acknowledged and appreciated it in the past, and so have our readers: http://ipkitten.blogspot.com/2016/06/communication-to-public-is-that-effect.html.

I have amended my post and linked to your earlier charts.

Carrie Bishop said...

Thanks so much for this chart and all the wonderful commentary and analysis on this issue and copyright in general. I'm busy saving up for my LLM fees (next year maybe fingers crossed) and the blog is a real life line re: IP law so I can keep up to date.

Eleonora Rosati said...

@Carrie: Many thanks for your very kind words: they mean a lot to me! I hope you can start your LLM soon!

Nolla said...

Thank you so much, it is very helpful. Special thanks for your fine analysis of Pirate Bay case.

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