Communication to the public : A study in light of Article 3(1) of the InfoSoc Directive (2001/29/EC)

Abstract: The intellectual property concept of ‘communication to the public’ in Article 3(1) of the InfoSoc Directive is a current issue within the EU, as the means of communication increase all the time due to the fast development of the information society. Accordingly, the CJEU has more than occasionally been instructed to rule upon this provision, as the Member States of the EU are unconfident as to how it should be interpreted. The poor guidance provided for in the preamble of the InfoSoc Directive in terms of how to construe the provision does probably contribute to this confusion. Article 3(1) of the InfoSoc Directive has been subject to disputes as concerns different means of communication, that is to say broadcasting, live performances, streaming and hyperlinking. Broadcasting and streaming are generally considered as communications within the meaning of the provision whereas live performances and hyperlinking have been deemed as falling outside the scope. More in detail, the most important criteria of a ‘communication to the public’ – laid down by the CJEU – suggest that the concept should be interpreted broadly, covering all transmissions and retransmissions where equipment facilitates for communications of signs, sounds or images, regardless of the means used and the nature of the place for the communication. A public refers to an indeterminate but fairly high number of people – considering the potential number rather than the exact number – not present at the place where the communication originates. The gap between the wording of Article 3(1) of the InfoSoc Directive and the developments carried out by the CJEU is considered troublesome since it decreases the legal certainty of the provision. A future recasting of these matters should thus contemplate the possibility to integrate the criteria laid down by the CJEU into the law.