When does a communication to the public under EU copyright law need to be to a ‘new public’? A new research article

Over the past several years, the right of communication to the public in art. 3(1) of the InfoSoc Directive has progressively and consistently taken centre stage in the EU copyright system. This has been so also given the great number of referrals (over twenty since the 2006 decision in SGAE) to the Court of Justice of the European Union (CJEU).

EU law does not define the concept of ‘communication to the public’. Lacking a definition, the CJEU has sought to determine the meaning and scope thereof in light of the objectives pursued by the InfoSoc Directive, notably that of ensuring a high level of protection of intellectual property (recital 24). Like the other economic rights harmonised in the InfoSoc Directive, the right of communication to the public “should be understood in a broad sense” (recital 23).

The two key requirements of art. 3(1) of the InfoSoc Directive are a ‘communication’ directed at a ‘public’. A simple example might be a free-to-air broadcast: the broadcast is an act of communication and it is to the public, because any member of the public with a suitable device can receive the signal and watch/listen to the broadcast. But what if the broadcaster operated online and made available works previously communicated online by the relevant rightholder? Would that activity require a licence? 

The CJEU has indicated that, when the communication at issue concerns the same works as those covered by the initial communication and is made by using the same technical means (as is the case in the example, since both acts are performed on the internet), it is necessary to determine – not whether the communication at issue qualifies as a communication to the public – but rather whether such communication is to a ‘new public’.

By ‘new public’, the Court intends a public not taken into account by the relevant rightholder when they authorised the initial communication. Although the ‘new public’ has been part of CJEU jurisprudence since 2006, it is a concept that has no statutory basis – whether in international or EU law. As a requirement employed by the CJEU in its case law, the ‘new public’ has been widely criticised, especially in the aftermath of the 2014 decision in Svensson.

In a research article which will be published by European Law Review later this year, I investigate the origin of the notion of ‘new public’, its use and development in the case law of the Court, as well as the justifications given for its use. 

The article identifies four distinct groups or phases of decisions in which the concept of ‘new public’ has been employed in different ways. The analysis details the evolution occurred within CJEU case law and shows how the role of the ‘new public’ has changed over time. 

In light of this history, the article agrees with existing scholarship that suggests that the ‘new public’ creates undue complexity in the reasoning of the CJEU in most instances, with only a limited number of cases, that is (some of) those concerning linking to protected content, in which the notion performs a substantial – yet confusing and overall unhelpful – role. However, it does not consider it absolutely necessary for the CJEU to expunge the concept of ‘new public’ from its analysis altogether, also because in most cases the role of the ‘new public’ has not been key. 

Whilst the abandonment of the ‘new public’ might be desirable in principle, it appears difficult to simply eject it from the analysis of the right of communication to the public lacking a proper re-calibration of the role of other components. In addition, it may be unrealistic as an expectation, also considering that the notion of ‘new public’ has been part of CJEU case law since the very first communication to the public case (SGAE).

The analysis undertaken in this article leads to the overall conclusion that the CJEU should at least cease considering the ‘new public’ as a requirement in instances in which the defendant’s act of communication to the public is in fact a new act communication to the public. If that is the case, art. 3(1) of the InfoSoc Directive applies and it is irrelevant whether the technical means is the same or different and whether the public targeted by said act is also new.

The one suggested is a solution that is readily implementable without the need to ‘depart’ from earlier case law. It also allows a more streamlined reasoning on the side of the CJEU, which is respectful of the language, content, and aims of both international and EU law provisions. Although the analysis mostly focuses on the case law issued in respect of art. 3(1) of the InfoSoc Directive, the findings are generally applicable to the various rights of communication/making available to the public and public performance under EU and national law, including inter alia the Rental and Lending Rights Directive and the recently adopted DSM Directive.

In sum, the elusive ‘new public’ concept that has dominated CJEU case law on communication to the public since 2006 may not be as key as the Court has instead considered and conveyed it to be.