Ten concluded that the public constitutes an ‘indeterminate number’

Ten
EU directives relate to the concept of ‘communication to the public, out of
which the ‘Copyright’ or ‘Infosoc’ Directive1
is thought to be of biggest significance as it harmonised some of the exclusive
rights enjoyed by the owner of copyright and related rights, namely the right
to communicate the work to the public and ‘making available’.

It
is important to note, however, that neither of the EU directives relating to ‘communication
to the public’ provides a clear definition of what, actually, constitutes an
act of communication to the public for the purposes of the EU copyright law. This
in itself supports the argument whereby the concept of communication to the
public is an obscure one, as a uniform understanding of the concept stem mostly
from the case law.

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Firstly,
it is important to discuss the criteria of the ‘communication to the public’.
Firstly, it has been established that the right of ‘communication to the public’
should be understood in a broad sense as covering ‘all the communication not
present at the place where the communication originates, including
retransmission by wire and wireless means’ as per Recital 23 of the Infosoc
Directive.2
This includes linear (in which user is not granted individual control over when
and where to access work) and non-linear services (which includes pulling
content at the user’s convenience).

Moreover,
the ‘public’ to which this communication is transmitted must also be located
outside the origins of the communication, which would exclude, for example, local
public performances. As clear as this sounds, it is important to note that
there is a disagreement as to what constitutes ‘outside the origins of the
communication’. According to Bechtold, for example, even a transmission of a
public performance via technical means to an audience in adjacent room may
qualify.3
This suggests that the concept of communication to the public is, in fact, an
obscure one.

Additionally,
the courts focused strongly on interpreting the concept of the ‘public’ to
which the work is communicated, as the Infosoc Directive itself does not state
how many persons compose a ‘public’. With the use of its previous case law, CJEU
concluded that the public constitutes an ‘indeterminate number’ of users.4
On this basis, it held that the successive viewers of TV in hotel rooms, as
well as of those present in the common areas of the hotel are sufficient to
form a ‘public’.5

The
concept of a right of communicating to the public was further obscured in a case
of SGAE v Rafael Hoteles6
which introduced the concept of a ‘new public’ and an ‘act of ‘intervention’.

Firstly,
the concept of ‘new public’ in the case of Rafael Hoteles was explained as ‘whether the persons to whom the work is
communicated were considered by their author when authorising the broadcast’
thereby comprising ‘new public’. The issue with ‘new public’ is that the
concept seems to be exhausted in relation to the Internet. This is due to the
fact that there will never be a ‘new public’ if the work becomes freely
available on the Internet.7
The courts, nevertheless, continue to apply the concept of ‘new public’ in
cases involving hyperlinking.

Secondly,
the court concluded that an act of ‘communication to the public’ required an
act of intervention and confirmed that Recital 27 of the Infosoc Directive on
physical facilities should be interpreted literally. This approach, however,
was heavily criticised as the outcome of the case suggests that an ‘intervening
act’ such as running a newsagent that allows members of the public on its
premises would constitute a ‘communication to the public’. This, as argued by
some scholars, could change the meaning of the communication to the public to
the ‘access right’8.
Moreover, the judgement was referred to by some EU scholars as a ‘logical
mistake’ due to its impracticality. It can also be argued that an ‘intervening
act’ was created for a purpose of increasing the level of protection for
copyright-holders, but it is at the expense of general public.  

To
conclude, the right of ‘communication to the public’ is a heavily criticised
concept. It is considered to be obscure due to the fact that it stems mostly
from the case law, as the EU directives do not provide much information on the
concept. Although the case law – as will be shown in subsequent headings – try
to harmonise the concept of communication to the public and the criteria that
needs to be fulfilled, many of the judgements were criticised for being
impracticable.