The ECJ has ruled on a reference from the High Court, giving helpful clarification on what constitutes a communication to the public for the purposes of the Info Soc Directive.
What's the issue?
The issue of what constitutes a communication to the public under the Info Soc Directive 2001/29/EC has been complicated by the development of new technologies and recent ECJ decisions.
What's the development?
The ECJ was asked by the English Court to clarify whether there is a communication to the public where a party (other than an original broadcaster) provides a service to subscribers who could lawfully receive the original broadcast on their TVs, allowing the subscribers to receive the contents of the broadcast via an internet stream. In addition the ECJ was asked whether it would make a difference whether the third party's service was only provided on one-to-one connections, funded by advertising or in competition with the original broadcaster.
What does this mean for you?
The ECJ decision is directly relevant to broadcasters and to services which stream programmes without a licence to do so. In the wider context, however, it also clarifies the scope of the communication to the public right.
In our view, this can be expressed as follows:
- Is there a communication or transmission?
- If so, is the communication through a different technical means (to the original one)?
- Is the communication to the public?
- If the communication is to the public and if the same technical means are used, is the communication to a 'new' public?
If the answers are 'yes' to questions 1 and 3 and to either 2 or 4, there will be a communication to the public.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
