The Right of Communication to the Public in EU Copyright Law

Justin Koo

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509920679
• Edition: 1
• Topic: Law
• Subtopic: Copyright Law
• Index: Law

This monograph conducts a comprehensive analysis of the EU right of communication to the public, one of the exclusive rights under EU copyright law, and provides an alternative framework for its interpretation and application. The present state of the law is unsatisfactory; there is uncertainty in the acquis communautaire and courts at the EU and domestic levels have struggled to apply the right. Therefore, the book identifies the problems with the existing right of communication to the public and proposes recommendations for reform. In addition to reforming the scope of the right of communication to the public, the jurisdiction and applicable law in relation to the right are analysed and changes are recommended. Thus, the book covers both the scope and practicalities of a coherent and effective reform of the right. In light of the continuing development and accompanying tribulations with this right at the EU level, this book provides a topical and timely analysis that will be of interest to academics and practitioners working on EU copyright law. Cited in Opinion of Advocate General Henrik Saugmandsgaard Øe, joined Cases C-682/18 and C-683/18, Frank Peterson v Google LLC, YouTube LLC, YouTube Inc., Google Germany GmbH and Elsevier Inc. v Cyando AG, ECLI: EU: C: 2020: 586, Court of Justice of the European Union, 16 July 2020.

1

Justifying EU Copyright Law: Constructing a Normative Framework for the Right of Communication to the Public

I.Introduction

The development of EU copyright law has been influenced by several pressures and interests, some attributable to general EU law and others unique to copyright law. These considerations include: the international copyright treaties; the domestic droit d’auteur and copyright traditions of the Member States; the Directives on copyright; EU law and policy; economic perspectives on copyright; and stakeholders’ interests. With this in mind, all aspects of EU copyright law must account for these considerations in order to create laws that are proportionate and certain.

These two norms – proportionality and certainty – provide the normative backbone for producing effective copyright law. Therefore, the analysis and reform of the communication to the public right in this book will be conducted using the norms of proportionality and certainty, as the measure to determine the shortcomings of the law. This chapter will argue that it is not enough to introduce the norms of proportionality and certainty only while interpreting copyright law at the litigation stage. Rather, they must also be prominently used during the conceptualisation and enactment of copyright legislation. Thus, this chapter will outline how the norms of proportionality and certainty are to be construed and the challenges associated with developing copyright law.

II.Constructing a Normative Framework for the EU Right of Communication to the Public

In order for EU copyright law to be effective, it must balance all the competing interests that are present. Additionally, the expression of the law must be clear, precise and consistent. Consequently, the norms of proportionality and certainty are essential to the production of effective law and must be applied from the conceptualisation of the law through to its interpretation and application. With this purpose in mind, the two norms of proportionality and certainty form the normative framework against which the right of communication to the public will be analysed and reformed.

By way of a general introduction to proportionality and certainty, these two norms are derived from the general principles of EU law.¹ The general principles of EU law have been described as basic, unwritten ideas that underlie the EU system.² Due to the fact that the principles are unwritten and there is no widespread agreement about their genesis, justification or function, they are considered a controversial source of law.³ For example, Sieburgh explains that principles can be used for a number of different functions such as: generating concrete rules, interpretation tools, gap-filling⁴ and a means of derogation.⁵ Alternatively, Morvan suggests that principles exist to set aside concrete legal provisions that have inopportune effects in a specific case.⁶ What this means is that the general principles have the potential to influence the development and interpretation of EU copyright law. In particular, the general principles are often used where there is uncertainty about how a particular case should be resolved.⁷

The use of these two principles together is not new, given that they operate in tandem in a number of Directives relevant to copyright law – Information Society Directive (ISD),⁸ E-Commerce Directive⁹ and Enforcement Directive.¹⁰ Consequently, for the purposes of this book, the norms of proportionality and certainty will be clearly defined in terms of their meaning, usage and justification.

III.Proportionality

The concept of proportionality in EU law can be derived from two sources. Firstly, there is the concept of proportionality under the general principles of EU law, which can be argued to be one of the central elements of EU law, given that it has the status of a constitutional principle by virtue of its inclusion under Article 5 of the TEU. It has the specific meaning of: ‘Union action shall not exceed what is necessary to achieve the objectives of the Treaties’ (Article 5(4)).¹¹ This allows the CJEU to measure the intensity of actions taken by the EU.¹² Therefore, proportionality transcends the definition of what a general principle is by virtue of being accepted and explained. Alternatively, there is also a principle of proportionality arising out of the fundamental rights literature.¹³ While there is some overlap with how proportionality is used in balancing competing fundamental or human rights and the general EU principle of proportionality, care should be taken to avoid conflation. This is important because proportionality can be used in both contexts in a single case.¹⁴

Notably, the CJEU has relied on the proportionality principle in its determination of the suitability of court orders and remedies.¹⁵ For example, Scarlet Extended v SABAM demonstrates this because the court order requiring Scarlet Extended to block its Internet users from accessing particular websites was dismissed, given that it was in conflict with Article 15(1) of the E-Commerce Directive 2000, Article 3 of the Enforcement Directive 2004 and Article 16 of the Charter of Fundamental Rights.¹⁶ The blocking order in this case was dismissed because it would have been disproportionate to require the Internet service provider (ISP) to actively monitor all of its customers for an unlimited period of time.¹⁷ By contrast, in UPC Telekabel the CJEU upheld the injunction granted by the domestic court where it permitted the defendant to choose the means to restrict its customers’ access to the infringing websites.¹⁸ Similarly, in Bonnier Audio the CJEU allowed an order requiring an ISP to provide the names and addresses of copyright infringers. It is also worth noting that the proportionality principle has been employed for the determination of infringement. In Nintendo v PC Box, the CJEU in following Advocate General (AG) Sharpston’s Opinion,¹⁹ agreed that finding infringement for the circumvention of technological protection measures (TPMs) must not negatively affect devices that have commercially significant purposes other than to circumvent TPMs.²⁰ As such, the Court must consider whether the finding of infringement will produce unwarranted negative externalities to the detriment of desirable activities, for example the development of technology.

Alternatively, in the case of Promusicae the proportionality principle was considered in relation to the transposition and interpretation of various Directives, requiring Member States to strike a fair balance between competing fundamental rights, as well as ensure consistency with the other constitutional considerations, in particular, the internal market consideration.²¹ Therefore, the balance that is struck between the various competing constitutional considerations must be proportionate so as to ensure that the objectives of the Treaties are not prejudiced. These cases illustrate that the principle of proportionality has been primarily used as an external balancing tool to ensure that the transposition and interpretation of Directives, or the finding of copyright infringement and its consequences do not produce unjustified or undesirable results that are unduly unfair to defendants or compromise the achievement of the objectives set out in the Treaties.

The proportionality principle has importance for the development of EU copyright law, given that it can influence the decisions made by the CJEU.²² However, the general EU principle of proportionality should play a greater role than it does currently. Proportionality should have a greater role to play at the legislative level where it can contribute to determining how the balance between various competing interests should be struck.²³ This will provide for a more proactive copyright framework, thus reducing the burden on the courts to balance conflicting or competing interests because the balancing act would have already been conducted at the legislative stage.²⁴

Therefore, it is proposed that the proportionality norm should be defined and applied in terms of the following three criteria: suitability, necessity and proportionality sensu stricto.²⁵ Although these criteria come from CJEU case law, it has been noted that the CJEU does not always follow the three steps listed. Instead, the CJEU has tended to focus on the suitability and necessity criteria.²⁶ Notwithstanding this, Ramalho suggests the use of all three criteria for the drafting of copyright legislation because it can produce better results.²⁷ In this regard, Ramalho argues that the EU legislator should: ‘evaluate the adequateness of the legislation harmonising copyright in relation to the objectives it wishes to attain’, consider alternative options that are equally effective and less restrictive, and balance the different interests at stake.²⁸ While Ramalho’s suggestion is acceptable, the use of the proportionality norm should not be limited to the creation of copyright legislation. It should be equally applied to the analysis, interpretation and reform of the law.

The use of the three-step approach in defining the proportionality norm is justifiable because of the comprehensive coverage provided by each of the steps in relation to what the proportionality norm proposes to do. That is, balance the scope of copyright law from its conceptualisation to its interpretation and application. The first criterion of suitability requires that the measure adopted should be appropriate to achieve the objective stated.²⁹ In the context of the right of communication to the public, this means that the provision must be capable of achieving its primary objective of controlling the non-material dissemination of works. This aspect of the three-step approach will be addressed in Chapter two, where the communication to the public right will be analysed in terms of what it sets out to achieve and what actually occurs.

The second criterion, necessity, presupposes that the least restrictive option will be utilised.³⁰ This should be interpreted to mean the option that is chosen is procedurally and/or substantively less onerous. For the purposes of the communication to the public right, this relates to the scope of the right. The right should not be so broad that it overreaches its primary objective. This has relevance for the ‘Transmission’ versus ‘Access’ approach and the relationship of the communication to the public right with the other exclusive rights. In other words, the second step deals with the scope of the communication to the public right that is addressed in Chapters two, three and four.

Lastly, the third criterion, proportionality sensu stricto, relates to the balancing of competing interests affecting copyright law. Unlike the current approach, whereby copyright law is subjected to a balancing exercise by courts, a more rigorous balancing exercise should begin at the stage of conceptualising and legislating for the law. In this way, the burden on the CJEU and domestic courts is reduced, as the right of communication to the public ought already to reflect a balanced approach. For this purpose it is necessary to a...