Case number and official translation of recent Swedish copyright referral now available

Earlier this Fall, the Swedish Patents and Market Court of Appeal asked the Court of Justice of the European Union (CJEU) to clarify the concept of “public” within the meaning of Article 3 and 4 of InfoSoc Directive [see here].

The background to this reference concerns two parties that operate their own respective websites. In separate proceedings, one of the parties (MA) submitted to the concerned court a copy of a text page containing a photograph that was taken from the other party’s (JJ) website. In turn, JJ claimed copyright infringement and damages from MA for making such photograph available (in Sweden court documents are public).

At first instance, the Patent and Market Court (PMD) established that copyright subsisted in the photograph and, by submitting it to the court, it meant that anyone could view that work under the domestic law provisions that relate to public access to information. Therefore, the PMD took the view that MA had communicated the work within the meaning of the Swedish Act on Copyright in Literary and Artistic Works (SCA). Ultimately, however, the action was dismissed since JJ had not suffered any loss. The decision was subsequently appealed to the PMÖD, which had to determine whether it was a copyright infringement to submit the work in question to a court.

In this sense, the PMÖD has to establish whether a court can be considered a “public” within the meaning of Articles 3(1) and 4(1) of the InfoSoc Directive. The court decided to stay the proceedings and refer the question to the CJEU.

As of today, the case has officially been given a case number (C-637/19), and the questions have been published on the website of the UK Intellectual Property Office, always a very useful resource on the latest CJEU referrals. They read as follows:

Does the term ‘public’ in Articles 3(1) and 4(1) of Directive 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 have a uniform meaning?

If question 1 is answered in the affirmative, is a court to be regarded as falling within the scope of the term ‘public’ within the meaning of those provisions?

If question 1 is answered in the negative:

a) In the event of communication of a protected work to a court, can that court fall within the scope of the term ‘public’?

b) In the event of distribution of a protected work to a court, can that court fall within the scope of the term ‘public’?

Does the fact that national legislation lays down a general principle of access to public documents in accordance with which any person who makes a request can access procedural documents transmitted to a court, except where they contain confidential information, affect the assessment of whether transmission to a court of a protected work amounts to a ‘communication to the public’ or a ‘distribution to the public’?

If you are interested in commenting on this case, you can do so by 30 October 2019 by emailing [email protected] and referencing the case number in the subject heading.