New Perspective on Copyright Law and Communication to the Public

The CJEU issued a new ruling on the communication of works to the public in Joined Cases C-775/21 and C-826/21. Is it an opportunity for a uniform approach or a risk of further fragmentation?

The case concerned, among other things, whether playing music to passengers inside a commercial aircraft constitutes communication of a work to the public. The answer seems simple, but the complex jurisprudence has raised the perennial question: does the profit-making nature of such use of the work matter? Unfortunately, the reasoning presented does not seem entirely satisfactory, although it offers some hope for the long-awaited unification of case law in this area.

Disclaimer: After writing and reading the entire text, I feel that the rest could be perceived as relatively critical. However, it is about reasoning and justification, from which, in a moment, lawyers will try to draw conclusions to apply them to other matters related to communication to the public. But this is what our role in society is all about. It’s not just to research and say how cool it is but to challenge any potentially absurd reasoning. So, I will repeat it as long as it takes: the law is not the purpose itself. It is merely a tool to ensure sustainable development and protection of society, considering the legitimate interests of all stakeholders.

The Court stated that:

1. Communication to the public “covers all communication to the public not present at the place where the communication originates and, thus, any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting” [para. 46].

Comment: Idem per idem, whatever. I have never understood what does mean that the audience is not present at the place where the communication originates. Is this condition satisfied if I am in the same room where the sound equipment is installed? Therefore, this passage seems completely unnecessary.

2. This means that two conditions must be met:

● Communication of a work, and

● Communication of that work to a public

and requires an individual assessment based on “several complementary criteria, which are not autonomous and are interdependent,” and “must be applied both individually and in their interaction with one another.” [paras. 47-48]

Comment: Two conditions, fine. Perhaps it could be better written as “an act of communication of a work” that is “addressed to the public,” but let’s not pick on syntax by lawyers. I completely do not understand the reference to the need to examine some individual complementary criteria. I am not even mentioning further reasoning about applying these criteria individually and collectively. This can be the final nail in the coffin.

3. These complementary criteria are, first and foremost:

● “Indispensable role played by the user and the deliberate nature of his or her intervention,” meaning that the user “intervenes, in full knowledge of the consequences of his or her action, to give his or her customers access to a protected work” [para. 49]

● “Profit-making nature,” but moments later, the Court adds that this “is not necessarily an essential condition for the existence of a communication to the public” [para. 50]

Comment: The answer on the profit-making nature already ends the discussion. The Court refers to the judgment in Case C-117/15, para. 49. However, I do not know why they bring this issue into all decisions, pointing out that this fact is more relevant to determining any remuneration due for such a communication. This should be a later comment on possible claims, not in discussing the concept of communication to the public. However, we are saved. The utterly pointless criterion of acting for profit has been rejected.

However, the first part of the consideration may be problematic. Does it mean that communication to the public in the EU must be done knowingly? Perhaps also intentionally? I have traced where this “condition” came from, and it turns out that all roads lead to paragraph 42 of the infamous judgment in Case C-306/05 - what is there?

It referred to the fact that a hotel buying a TV RECEIVER and putting it in the hotel room is communication to the public. Based on the same judgment, the referring court doubted that perhaps the mere installation of equipment for broadcasting works on an aircraft constitutes a communication to the public (hardly surprising). Of course, our valiant CJEU correctly disagreed but did not make any further considerations there. They merely stated that the installation of television sets in public houses, hotels, spas, or rehabilitation centers should not be confused with “mere installation of sound equipment in a means of transport.” [paras. 70-71]. The idea, of course, was to allow the customers of such establishments to enjoy the works transmitted in this way. The question is whether it could have been written better.

4. The public requirement is met when the communication relates to an indeterminate number of potential recipients and, at the same time, assumes a fairly significant number of such people [para. 52].

Comment: This is fine, except that, again, it could have been written more simply. The public should mean any potentially indeterminate group of people that are not in normal social relations with each other (e.g., a few friends watching a video together on a streaming platform will not, in principle, be the public).

The CJEU’s conclusion:

“Article 3(1) of Directive 2001/29 must be interpreted as meaning that the broadcasting, in a means of passenger transport, of a musical work as background music constitutes a communication to the public within the meaning of that provision” [para. 57].

The author’s conclusion:

The conclusion seems essentially logical. However, the whole process of the Court’s reasoning shows how complicated copyright jurisprudence has become, and not only concerning the communication of a work to the public.

Yet it could have been simplified. It is enough to say that the communication of a work to the public should be understood as the right to initiate acts that allow an indeterminate and substantial number of potential recipients to become acquainted with the work.

By the way

The other issues raised by the judgment are worth mentioning in passing. Two more important conclusions come to the front, one of which I have already mentioned:

● The installation of sound equipment in means of transport by itself does not constitute communication to the public (NOT to be confused with hotels and other establishments mentioned in point 3 of this commentary!).

● EU law precludes member states from giving broader protection to copyright holders in terms of communication to the public. It also does not allow for a rebuttable presumption that works are communicated to the public simply because of the presence of sound equipment in means of transport.

This conclusion of maximum harmonization of the exclusive rights contained in the Directives always raises essential questions. Thus, is it possible to adopt a complementary right, e.g., a right of public use of a work, which would include other forms of public exploitation of the work than communication to the public? The provisions of Polish copyright law give the author an almost unlimited right to exploit the work in any form (with certain exceptions and limitations). But are such rules compatible with EU law?