Has the CJEU Been Successful in Balancing and Consistently Applying the Economic Right of “Communication to the Public”?

Abstract

While the term selected to describe the legal field, copyright, reveal what has been the most important avenue for economic exploitation of copyrightable works, new technological developments may indicate a shift. Modern communication technologies enable us to create and disseminate works at a speed and a cost unheard of a few centuries ago. These technological methods of dissemination have started to play an indispensable role in our society, democratic process, and for businesses and innovation alike. However, rightsholders may naturally feel under siege through the ease with which we may share their creations. The CJEU responded by applying the concept of "communication" broadly, continuously expanding its scope. While acknowledging the need for balance, the CJEU has introduced additional assessments to mitigate the consequences of the initially broad scope. These additions have resulted in that finding a "communication" directed at a "public" is not necessarily a "communication to the public". It must be assessed whether the communication is to a "new public", and if so, the knowledge of the communicator. Furthermore, it might be necessary to compare the different technical methods used to disseminate the copyrightable work. Not only are these additional assessments highly multifaceted, but they do not strike the appropriate balance between the various rights, interests and objectives involved, with uncertainty being the only consistent theme in their application.

The CJEU has not succeeded in balancing and consistently applying the economic right of "communication to the public". A narrower approach to "communication", accompanied by the removal of the additional assessments, is preferable to strike an appropriate balance between the various rights, interests and objectives. The rightsholders would be sufficiently protected through the application of the narrower but more comprehendible economic right, which could be combined with alternative avenues of redress, like unfair competition and secondary liability, albeit unharmonised.

Keywords: copyright, communication to the public