Communication to the Public Flashcards
CJEU Three Stage Test
- Has D communicated the work?
- Was that communication a communication to the public of the work?
- Was that communication authorised?
Every case is likely to be different as the national court must take into account all the factors, the significance of these factors and the way in which they interact will vary widely: SCF
Was there a communication? Work must be accessible
(but need not have been accessed: SGAE; Svensson)
- If the work cannot be accessed, then the fact it has been electronically transmitted will be irrelevant.
- Where a work is made available by electronic transmission in such a way that persons may access it (SGAE; FAPL)
- What must be accessible is the matter which constitutes the essence of the relevant copyright work e.g. GUI in TV broadcast only communicated in a passive manner – could not use essential feature of enabling interaction with the computer program (BSA)
Was there a communication? 3P Interventions
• There may have been one or more of a number of different communications, each needing to be analysed to determine whether it amounted to communication to public
o A publican who receives a broadcast and transmits it over a screen and loudspeaker to customers in the premises has communicated the works contained in that broadcast to those customers (SGAE)
o The intervener can be said to have communicated the works because its intervention was material in the sense that, without it, the public could not have enjoyed the work in the way that it did.
Cf. where intervention was merely to provide a technical means to ensure or improve reception of the original broadcast in its catchment area, then it will not have communicated the works to the ultimate recipients but the broadcaster may have done (SBS Belgium)
Was there a communication? Mere Provision of Facilities is Insufficient
a company specialising in the sale or hire of television sets is not communicating any work to the public.
By contrast, the hotelier to whom those sets are supplied and who installs them in its hotel rooms to receive a broadcast signal that it channels to those rooms, will be communicating the broadcast works.
Was there a communication to the public?
A work can be communicated to the public even though it is received by members of the public in a private or domestic location – if it were otherwise, the ‘on-demand’ right would be meaningless (SGAE)
Irrelevant that recipients access the works one at a time, provided a sufficiently (or fairly) large number of people can have access at the same time (ITV) and excludes groups which are too small or insignificant (SGAE; PP; ITV) nor individuals belonging to a private group (SCF) – a de minimis threshold.
It is necessary to take into account D’s cumulative actions in terms of concurrent and successive potential recipients e.g. hotel (SGAE; SCF)
It may be relevant to consider whether the communication is performed with the aim of obtaining some benefit – particularly if it is of a profit making nature (SGAE; SCF)
[FAPL v QC Leisure- ‘it is not irrelevant that a “communication” within the meaning of Article 3(1) of the Copyright Directive is of a profit-making nature’
Decisive in GS Media but not irrelevant Filmspeler - may or may not spring on you?]
It may also be relevant to consider whether the persons who are potential recipients are receptive to the communication or whether they are merely caught by chance.
Was there a communication to the public? Cases
Phonographic Performance: broadcasts constituted an additional service “which has an influence on the hotel’s standing” and, therefore on the price of the rooms.
Cf. SCF (same day!): difficult to regard the people involved as “the public” given that
o there was only a “very limited” number of people present at the same time and that others visiting in succession would be unlikely to hear the same works being played.
o the class of recipients in SCF was determinate rather than indeterminate in that other people would not, as a rule, have access to treatment by that dentist (but hotel guests… or private golf club, hairdressers?)
o a non-profit motive to the dentist in SCF – questionable, presumably to improve the experience, keep custom.
o the dentist’s patients were not listening to the music through choice; is the accessibility of a work which is relevant, not whether the public chose to access it.
FAPL: Makeen- significant doubts can be raised about the CJEU’s conclusion that the publicans’ showing of Premier League football broadcasts was a communication to the public, as opposed to a communication in public (i.e. public performance) of the relevant copyright works.
(s19 CDPA expressly covers ‘the playing or showing of the work in public’ - Kitchin LJ s20 was an effective transposition of Article 3(1) ISD and that the publicans’ activities fell within s20 (even if they could also fall within s19)
Was there a communication to the public? Intention?
Reha Training, AG Bot:
When considering the concept of communication, AG Bot put the emphasis on the user who “must act intentionally”. The act is made where the user intervenes with full knowledge of the consequences to give access to protected work to its clients. The concept should be construed broadly to cover any transmission “irrespective of the technical means or process used”.
Was the communication to the public authorised?
‘New public’ an invention of judges: Where there is an earlier authorised communication of the work, a different act of communication will only infringe it is made to a section of the public beyond that authorised by the copyright owner, or the same section of public by a different means of electronic transmission.
Was the communication to the public authorised? Cases
SGAE; PP; FAPL: The public taken into account by the copyright owner in authorising the original broadcast was limited to direct users, that is the owners of reception equipment who, either personally or within their own private or family circles, receive the broadcast programme.
Svensson: Articles published with consent of journalists on website, D provided links to those articles and was not infringing as D’s customers were part of the same public that the CR owner had taken into account when authorising the initial communication on the website.
> Would not be different if ‘framing’ occurred: i.e. work presented in such a way that it was appearing on the operator’s website (embedded?)
> Would be different if newspaper had placed a restriction on access to the work and the link allowed circumvention of that restriction.
> Equated access and authorisation. (Technological attraction/implied licence, without access restrictions.)
> Profit motive not spoken about
> No real analogy of hyperlinks to the internet in terms of enormity of public.
Paramount Home Ent: Websites providing links to CR films were held to infringement communication to public such as to justify website blocking injunctions. Operators intervened in a material way, making works accessible to a new public.
