IP Insight: Copyright and Freedom of Information in the EU
IP Insight is a series from IP specialists Virtuoso Legal covering key decisions and changes in IP law.
This case sheds light on the position of copyright protection against freedom of information and provides further definition of Article 3(1) of the Copyright Directive 2001/29/EC.
BY v CX  C-637/19
By Hallam Whitehead and Catherine Wynn
The two parties in this case, BY and CX, are both private persons operating their own websites. During court proceedings in Sweden, CX submitted to the court – via email – copies of text and a photograph from BY’s website.
Sweden has national transparency laws, or freedom of information rules, which allow any member of the public to request access to procedural documents submitted to court during proceedings, including evidence such as that sent by CX.
BY claimed that this meant there had been a breach of either Article 3(1) or Article 4(1) of the Copyright Directive due to a communication or distribution (respectively) of copyright works to the public. The Swedish court agreed that technically, due to their transparency laws, any member of the public could access the documents, but the claim should be dismissed as BY suffered no material damage from this communication.
On appeal, the Swedish court of appeal decided to refer the matter to the CJEU. The question that Advocate General Hogan answered was: in what circumstances, if any, does the disclosure to a court by email of copyrighted material as evidence in the course of proceedings amount to a communication to the public for the purposes of Article 3(1), or a distribution to the public under Article 4(1), of the Copyright Directive.
Hogan quickly clarified the difference between Articles 3(1) and 4(1). ‘Distribution’ under Article 4(1) has previously been defined by the CJEU to mean the circulation to the public of a work which is a physical, tangible item. As the document in this case was submitted via email, this does not amount to distribution for the purposes of Article 4(1) but would be considered a communication under Article 3(1).
To be able to answer the main question, Hogan had to decide whether the court constituted the ‘public’ and whether national transparency laws affect this position.
The Advocate General found that while the third parties performing administrative and judicial functions within the court – who may receive copyrighted documents in the course of proceedings – may be a large number of people, they would not constitute the ‘public’ under Article 3(1) because they would be constrained to their official functions and not entitled to treat the materials as being free from copyright protection. The ‘public’ needs to be an indeterminate number of recipients, rather than a closed group bound by legal and ethical rules.
Hogan went on to explain that the disclosure of copyrighted material under transparency rules does not have the substantive effect that the material loses its status as copyright protected as it would if entering the public domain. If Swedish national laws on freedom of information meant that copyrighted documents would lose their protection from merely being exhibited in civil proceedings, then this would not be sufficiently protecting intellectual property rights.
Therefore, although CX did communicate the copyrighted works to the court, the court is not considered as ‘the public’ and was therefore not breaching copyright under Article 3(1). Hogan further stated that under freedom of information rules, it would be the court who communicated the copyrighted materials to the public and not the defendant in any case.
This case helps to determine the difference between ‘the public’ and ‘public domain’ in relation to both copyright and freedom of information laws.
Just because a work is accessible by the public, does not mean that it has lost its copyright protection and become part of the public domain.
This differentiation comes from whether the public is free to use the work in any way they please.
Overall, clients will be able to rest easier knowing that submitting potentially copyrighted work to court in order to defend themselves during proceedings is without the threat of breaching Article 3(1) of the Copyright Directive.
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