The matter at hand
BY exploited a website and owned the copyrights to a photograph displayed on that website. During court proceedings against BY, CX submitted a screenshot of BY’s website - including the photograph – as evidence to the court. BY claimed that the disclosure of the photograph in court proceedings amounted to the infringement of BY’s copyrights.
The Swedish Civil Court in first instance ruled that the photograph, being added to the proceedings by CX, became a ‘publicly accessible court document’ and therefore constituted an infringement of BY’s copyright under Swedish law. However, the court dismissed the subsequent damages claim, since BY could not establish actual damages suffered resulting from the disclosure.
BY brought an appeal before the Svea Hovrätt, Patent- och marknadsöverdomstolen, the Swedish court of appeal, seeking review of the decision. The Swedish Court of Appeal referred four preliminary questions to the ECJ. With its questions, the Swedish Court of Appeal effectively requested the ECJ to clarify if the submission of a copyrighted work to public proceedings amounts to a ‘communication of the public’ within the meaning of Article 3(1) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
The judgment of the ECJ
Referring to Stichting Brein C‑610/15, the ECJ firstly concludes that, in order to establish a 'communication to the public' as per Article 3(1) the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, the protected work must actually be communicated to a public. The concept of 'public' refers to an indeterminate number of potential recipients, implying a fairly large number of persons (see Reha Training C‑117/15 and VCAST, C‑265/16) (paragraph 22-23).
In this specific case, the communication pertains to a clearly defined and closed group of persons holding public service functions within a court, not an indeterminate number of potential recipients. Consequently, the transmission by electronic means of a protected work to a court, as evidence in legal proceedings between individuals, is not regarded as a 'communication to the public' (paragraph 29). The existence of national rules on access to public documents is deemed irrelevant, as access is granted by the court, not the user transmitting the work (paragraph 30).
The ECJ highlights that the above interpretation, particularly in the electronic environment, maintains a fair balance between the interests of copyright holders and the protection of users' fundamental rights and the public interest (Pelham C‑476/17). The Court emphasizes that the right to intellectual property, enshrined in Article 17(2) of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01], must be weighed against other fundamental rights, including the right to an effective remedy guaranteed in Article 47 of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01]. The ECJ considers that a rights holder opposing the disclosure of evidence to a court solely on the grounds of copyright protection would seriously compromise the right to an effective remedy (paragraph 33).
The ECJ concludes that the answer to the referred questions is that Article 3(1) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the concept of 'communication to the public' does not cover the transmission by electronic means of a protected work to a court, as evidence in judicial proceedings between individuals.