COURT OF JUSTICE OF THE EUROPEAN UNION: THE TRANSMISSION OF A COPY OF A PHOTOGRAPH IN JUDICIAL PROCEEDINGS BETWEEN INDIVIDUALS DOES NOT CONSTITUTE COMMUNICATION TO THE PUBLIC
By judgment of October 28, 2020, the Court of Justice ruled in a dispute (Case C- 637/19) concerning the potential use of a copyright protected work as evidence in judicial proceedings between individuals. The Court, balancing copyright with the right to an effective remedy granted by the Charter of Fundamental Rights, underlined that the criterion of „public“ communication does not apply in case of use for defensive purposes.
The fact and the judgment of first instance:
The case herein concerns two individuals resident in Sweden, who both run their own websites. In the main proceedings originally initiated before the Swedish civil court, the defendant was held liable for the infringement of the plaintiff’s copyright on a photograph: the transmission to the court seised of a copy of a page of a text extracted from the plaintiff’s website and involving a photograph would qualify as unauthorised communication to the public.
The transfer of such content by electronic means was functional to its use as evidence in the judgement. The applicant had argued that such behaviour, claiming ownership of his copyright on the photograph at issue, seeking an order for damages for copyright infringement and also claiming infringement of the special legislation conferred on photographs by Swedish copyright law. On this point, since the photograph in question had been transmitted to a court as a procedural document, the court of first instance had first found that anyone could request its communication. The court had also qualified the action brought by the defendant as a genuine ‚distribution to the public‘ of that photograph under Swedish law. In conclusion, however, the court rejected the plaintiff’s request, finding that the damage suffered was not proven.
The uncertainties in the appeal proceedings:
In light of this ruling, the appellant filed an appeal before the Stockholm Court of Appeal. In this case, many doubts were raised about the correct interpretation, within the framework of European Union law, of the concepts of „communication to the public“ and „distribution to the public“ in case of transmission of a work protected by copyright to a competent Court. The main question was whether a court could be considered as falling, for all intents and purposes, within the concept of „public“ within the meaning of Directive 2001/29 and whether the term „public“ had the same meaning for the purposes of applying Articles 3(1)  and 4(1)  of that directive. The Swedish Court of Appeal referred the questions to the Court of Justice.
The CJEU’s decision:
The Court of Justice has underlined that the concept of „communication to the public“ includes two criteria The first one, i.e. communication, understood as „any act by which a user gives access to protected works, in full knowledge of the consequences of his or her behaviour“ occurs in the present case, where the transmission of a protected work to a court by e-mail has occurred.
The same cannot be said for the second criteria that requires protected works to be effectively communicated to the so-called „people in general“, i.e. to an indeterminate number of recipients, a rather considerable number of people in their amount: the communication was intended for a defined and limited group of professionals exercising their functions to satisfy a public interest. It would not, therefore, be a communication to a generalised and indefinite audience, but to well-defined individuals. In this context, the national rules allowing access to public documents are irrelevant since such access is not granted by the user who has transmitted the work to the court, but by the latter to individuals who request it.
The Court also stressed that this interpretation ensures a fair balance between the interests of copyright holders and the protection of the interests of all those who use protected material in the digital and electronic environment. In conclusion, therefore, the Court of Justice of the European Union ruled out that the transmission by electronic means of a protected work to a court of law as evidence in judicial proceedings between individuals could not be included within the notion of „communication to the public“, considering also the fundamental right to an effective remedy before a court guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union.
 Article 3(1) of Directive 2001/29 states that “Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them”;
 Article 3(1) of Directive 2001/29 states that “Member States shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise”.