It's Just a Part of the Process - The Disclosure of Copyright Protected Materials Is Not Communication to the Public

Any litigator will be very familiar with the process of disclosure (or discovery for our American friends), where you exchange a wealth of documents with each other as parties to litigation in order to better assess the case you have and what materials support it. Often the breadth of disclosure can be immense and encompass a huge variety of documents of all sorts, from emails, internal notes to photos, depending on the case at hand. Unsurprisingly many of these documents will be protected by copyright, and it's unclear, at least on its face, whether the sharing of those documents as a part of disclosure would infringe copyright (or could be prevented using copyright to do so). Luckily enough the CJEU was tasked to answer this question in a recent case and handed down their judgment in late October. 

The case of BY v CX concerned litigation between the parties in the Swedish civil courts, where during the disclosure process CX sent the court a seized copy of a page of text containing a photograph as evidence in the proceedings via email, which was taken from BY's website. BY requested that CX pay damages for copyright infringement for the sharing of the photographs with the court. At first instance the Swedish courts dismissed BY's claim, as, although the photographs were protected by copyright, no harm was suffered since they were shared as a part of litigation. BY subsequently appealed the decision, which ultimately ended up with the CJEU. 

The Court considered the four questions submitted to it together, which asked "...whether Article 3(1) of Directive 2001/29 must be interpreted as meaning that the concept of ‘communication to the public’, referred to in that provision, covers the transmission by electronic means to a court, as evidence in judicial proceedings between individuals, of a protected work".

To kick things off the Court went through the requirements for what amounts to a 'communication to the public', namely: (i) an act of communication of a work and (ii) the communication of that work to a public.

The Court first noted that 'an act of communication' includes any act by which a user gives access to protected works, with full knowledge of the consequences of that action, is liable to constitute an act of communication, This would be the case, prima facie, where a protected work is transmitted by electronic means to a court as evidence in judicial proceedings between individuals.

Secondly, the work has to be communicated to a 'public', which refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons, which does not simply mean private groups but could be the general public. 

In the current case the Court determined that the public in this instance would be a clearly defined and closed group of persons holding public service functions within a court, and not to an indeterminate number of potential recipients. The communication has not therefore been made generally, but to a specific set of professionals in the court system. In the light of this the Court saw that it would not amount to a 'communication to the public'. 

Further, even if national legislation allows for the public inspection of documents in court proceedings does not change this fact. In these instances access is granted by the courts, and not the person that sent the documents to the courts, which is often under an obligation to provide access to court documents. Article 9 specifically allows for this, as it permits the transmission of copyright protected materials for the purpose of access to public documents. 

The CJEU therefore decided that: "Article 3(1)… must be interpreted as meaning that the concept of ‘communication to the public’, referred to in that provision, does not cover the transmission by electronic means of a protected work to a court, as evidence in judicial proceedings between individuals".

The decision is in no way surprising, since access to litigation related documents is paramount in many jurisdictions, and preventing access to them would hinder the availability of important documentation. The argument was indeed a very novel one, but one that was set to fail from the beginning. This writer wonders whether it was simply an attempt to hinder the disclosure process, but that is merely conjecture.