Submission of protected photographs in court proceedings and copyright: CJEU judgment

The Court of Justice of the European Union (“CJEU”) recently delivered a judgment in Case C-637/19, BY c. CX. In line with Advocate General’s conclusions already discussed in this blog, the CJUE concluded that the submission of copyright-protected photographs to a court as evidence is an act of communication, although not addressed to a public, and therefore it should not be considered an act of communication to the public under Directive 2001/29 (the “Directive”).

This conclusion might seem obvious, and the circumstances of the main proceedings (including the questions referred for a preliminary ruling discussed below) may be surprising. But the judgment is relevant because it once again defines (i) when an act of communication to the public occurs according to the Directive and (ii) the balancing of interests required when the exclusive right of copyright holders clashes with other rights, such as the right to effective legal protection.

The preliminary ruling stemmed from a dispute between BY, an individual operating a website, and CX, after the latter submitted a photograph on which the former claimed to hold copyrights in court proceedings without authorization. BY claimed that these copyrights had been infringed.

After an appeal to the Stockholm Patents, Trademarks and Markets Court of Appeal, this court referred four questions to the CJEU for a preliminary ruling. The aim of these questions was to determine if, and in what circumstances, submitting copyright-protected material to a court as evidence could be considered communication to the public under the terms of the Directive.

The CJEU clarified that, since the disputed photograph was submitted by electronic means, not in hard copy, the only right subject to interpretation was the right of communication to the public of works, and not the distribution right.

The CJEU also recalled that there will only be an act of communication to the public if (i) there is an “act of communication” and (ii) this act is addressed to a “public.” The CJEU has established this in settled case law (including its judgments in cases c-117/15, Reha Training and c-263/18, Tom Kabinet).

The CJEU accepts without much hesitation that submitting copyright-protected material in court proceedings like in the case at hand is an act of communication, construed as “any act by which a user gives access to protected works, with full knowledge of the consequences of that action” (citing its judgment in case c-610/15, Stichting Brein c. Ziggo).

According to the CJEU, the notion of ‘public’ raises more interpretative concerns. The CJEU case law has defined the concept of ‘public’ as an “indeterminate number of potential recipients” implying a “fairly large number of persons” (see CJEU judgments in cases c-135/10, Del Corso and c-162/10, Phonographic Performance).

In the CJEU’s view, an act of communication like the one at hand is addressed to a clearly defined, closed group of persons performing a public service in court, and therefore it is not addressed to indeterminate recipients. The judge and the other public servants are not “persons in general,” but “specific individual professionals.”

The CJEU concluded that submitting a copyright-protected photograph in court proceedings cannot be considered an act of communication to the public under the Directive because it is not addressed to a public.

The CJUE reaches this conclusion despite that Swedish law provides a general principle of access to public documents (including protected material submitted in court proceedings) under which: (i) it would be public authorities, and not the parties to the proceedings, who would be making available to the public copyright-protected works under national procedural provisions; and (ii) these provisions would not be affected by the Directive, as expressly provided in article 9 regarding the application of other legal provisions.

The CJEU finally emphasizes the need to balance the interests at stake, i.e., those of copyright holders, on the one hand, and the general interest and other rights like the right to effective legal protection, on the other. In the words of the CJEU, these latter rights would be “seriously compromised if a rightholder were able to oppose the disclosure of evidence to a court on the sole ground that that evidence contains subject matter protected by copyright” (paragraph 33 of the judgment). As a result, this solution appears to strike the best balance and be the most desired outcome in the case at hand.

 Authors: Marta Zaballos and Inés Cabañas.