Ten concluded that the public constitutes an ‘indeterminate number’

TenEU directives relate to the concept of ‘communication to the public, out ofwhich the ‘Copyright’ or ‘Infosoc’ Directive1is thought to be of biggest significance as it harmonised some of the exclusiverights enjoyed by the owner of copyright and related rights, namely the rightto communicate the work to the public and ‘making available’. Itis important to note, however, that neither of the EU directives relating to ‘communicationto the public’ provides a clear definition of what, actually, constitutes anact of communication to the public for the purposes of the EU copyright law. Thisin itself supports the argument whereby the concept of communication to thepublic is an obscure one, as a uniform understanding of the concept stem mostlyfrom the case law. 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 notpresent at the place where the communication originates, includingretransmission by wire and wireless means’ as per Recital 23 of the InfosocDirective.

2This includes linear (in which user is not granted individual control over whenand where to access work) and non-linear services (which includes pullingcontent at the user’s convenience). Moreover,the ‘public’ to which this communication is transmitted must also be locatedoutside the origins of the communication, which would exclude, for example, localpublic performances. As clear as this sounds, it is important to note thatthere is a disagreement as to what constitutes ‘outside the origins of thecommunication’. According to Bechtold, for example, even a transmission of apublic performance via technical means to an audience in adjacent room mayqualify.3This suggests that the concept of communication to the public is, in fact, anobscure one. Additionally,the courts focused strongly on interpreting the concept of the ‘public’ towhich the work is communicated, as the Infosoc Directive itself does not statehow many persons compose a ‘public’.

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With the use of its previous case law, CJEUconcluded that the public constitutes an ‘indeterminate number’ of users.4On this basis, it held that the successive viewers of TV in hotel rooms, aswell as of those present in the common areas of the hotel are sufficient toform a ‘public’.5Theconcept of a right of communicating to the public was further obscured in a caseof SGAE v Rafael Hoteles6which 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 iscommunicated were considered by their author when authorising the broadcast’thereby comprising ‘new public’. The issue with ‘new public’ is that theconcept seems to be exhausted in relation to the Internet. This is due to thefact that there will never be a ‘new public’ if the work becomes freelyavailable on the Internet.

7The courts, nevertheless, continue to apply the concept of ‘new public’ incases involving hyperlinking. Secondly,the court concluded that an act of ‘communication to the public’ required anact of intervention and confirmed that Recital 27 of the Infosoc Directive onphysical facilities should be interpreted literally. This approach, however,was heavily criticised as the outcome of the case suggests that an ‘interveningact’ such as running a newsagent that allows members of the public on itspremises would constitute a ‘communication to the public’. This, as argued bysome scholars, could change the meaning of the communication to the public tothe ‘access right’8.Moreover, the judgement was referred to by some EU scholars as a ‘logicalmistake’ due to its impracticality. It can also be argued that an ‘interveningact’ was created for a purpose of increasing the level of protection forcopyright-holders, but it is at the expense of general public.  Toconclude, the right of ‘communication to the public’ is a heavily criticisedconcept. It is considered to be obscure due to the fact that it stems mostlyfrom the case law, as the EU directives do not provide much information on theconcept.

Although the case law – as will be shown in subsequent headings – tryto harmonise the concept of communication to the public and the criteria thatneeds to be fulfilled, many of the judgements were criticised for beingimpracticable.