Communication to a New Public? Three Reasons Why EU Copyright Law Can Do Without a ‘New Public’

Abstract

This article critically examines the ‘new public’ test in EU copyright law, which was developed by the Court of Justice of the EU interpreting the right of communication to the public in cases of retransmission. As we believe, this test is flawed for at least three reasons: historic, conceptual and economic. First, it is at odds with the wording and history of Article 11bis(1) of the Berne Convention. Second, by linking the scope of the communication right to the authorization by the authors for the initial (primary) act of communication, it introduces a subjective – contractual or mental – element in the definition of the exclusive right, making it conceptually unsound and legally uncertain. Third, the ‘new public’ test effectively implies a rule of exhaustion of the communication right, in contravention with Article 3(3) of the InfoSoc Directive. This is particularly apparent in the case of Svensson, where the CJEU considered that all internet users are potential recipients of communications freely available online, and therefore part of the same ‘public’.

In our opinion, the right of communication to the public can operate perfectly well without a requirement of 'new public’. International and EU copyright law already provide robust criteria to distinguish retransmissions that are covered by the right of communication from those that are not. A ‘new public’ test is not necessary to make this distinction, and essentially flawed.

In the current world of multimedia, works are exploited in many different ways, by different media on distinct markets, while at the same time aiming for, and reaching, precisely the same ‘public’: on broadcast television, on dvd’s, via Netflix, on cable, on mobile platforms, etc. While all these distinct services communicate to the same ‘public’, they amount to independent acts of exploitation, and are to be treated accordingly under copyright law. Whether a ‘new’ public is reached, should be irrelevant to a finding of copyright infringement.

Keywords: copyright, communication to the public, new public, Berne Convention, hyperlinking, aggregation