Clarifying that there is Communication to the Public

 

 

The proposed Copyright Directive sets out to provide a correct interpretation of the current acquis, as it should apply to the copyright relevant acts of user uploaded content (UUC) services. Because this issue has proven to be unclear to national courts*, and cases across Europe have had varying and contradicting outcomes, the Commission set out to straighten the record on the matter. 

 

 

 

 

One of the issues at stake is the need to clarify that UUC services communicate to the public under Article 3 of the 2001/29/EC InfoSoc Directive

 

 

 

 

In several cases, such as Svensson C-466/12 and TeleKabel C-314/12, CJEU ruled that provision of direct access to the work and “making the work accessible” was enough to establish communication to the public, and in several other rulings it required that the service play an “indispensable role” in communicating the works to the public.

 

In the Airfield (Joined Cases C-431/09, C-432/09) ruling, CJEU provided that one act of communication to the public could have two parties involved that are jointly liable for this single and indivisible act, if the role played by the operator is not limited to “mere provision of physical facilities”.

 

Therefore under the current copyright rules, activities of services such as YouTube, SoundCloud and Dailymotion amount to communication to the public.

 

 

These services make works available and accessible to the public, play an indispensable role in this making available, and do far more than a mere provision of technical facilities

 

This point of law has also been unequivocally endorsed by the ALAI Executive Committee in its resolution of February 20174 by stating that: “The affirmation by recital 38 … that information society services which make works accessible to the public could be regarded as committing an act of communication to the public merely applies the solutions advocated by international instruments (Article 8 of the WIPO Copyright Treaty of 20 December 1996) or European ones (Article 3 of Directive 2001/29/EC). However, it is welcome in view of the different interpretations that are sometimes put forward.”

 

  • For a further in-depth analysis of relevant CJEU cases and of the compatibility with the acquis communautaire, read more here.

 

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*For instance, in the GEMA vs YouTube cases the German court said there was no act of communication to the public by the service, yet due to YouTube’s current situation in the market where it competed with services like Spotify, it had to have an effective stay-down obligation. Italian courts in cases against RTI and Break Media also asked for strict stay-down measures. In France, the courts in cases against Dailymotion considered the service a hosting provider subject to notice and take down only; although in some of the cases they considered the relevance of communication to the public by the service and full liability in some others (e.g. Google Videos). In the UK, the courts that decided on some of the website blocking cases against user-uploaded content websites established that the concerned services undertake a communication to the public and could not benefit from safe harbour.