Copyright-protected works can be used as evidence, says AG
Litigants should not be liable for submitting copyright-protected material in evidence to a court, an adviser to the EU’s top court has said.
The opinion was issued today, September 3, by Gerard Hogan, an advocate general (AG) of the Court of Justice of the European Union (CJEU).
AGs’ opinions are not binding on the court, although are considered influential in shaping the CJEU’s final decision.
The opinion came as part of a copyright dispute between two individuals, listed in court as ‘BY’ and ‘CX’.
In a prior dispute before civil courts in Sweden, CX submitted a page of text and a photograph from BY’s website as evidence.
BY then claimed that he owned the copyright for the photograph, and asked that CX be ordered to pay damages for infringing his IP.
Sweden’s Patent and Commercial Court asked the CJEU to rule on whether CX submitting the photo to the court constituted a “communication to the public” under EU copyright law.
This is a key provision which gives copyright owners the exclusive right to determine whether, and how, their work is communicated to the public.
In today’s opinion, Hogan said he did not think CX’s use of the photograph constituted a communication to the public, because court officials are constrained by how they can use the material.
“In particular, they would not be entitled to treat the copyrighted material as being free from copyright protection,” Hogan wrote.
According to Hogan, to qualify as a communication to the public, the act must be aimed at an “indeterminate number of potential recipients”.
Even if a litigant such as CX communicated the work to a large number of people, like the court’s judicial staff, this would not qualify.
“The communication would instead be aimed at a clearly defined and limited or closed group of people who exercise their functions in the public interest,” the AG wrote.
“In my view, the communication of material protected by copyright to a court as evidence in the context of judicial proceedings does not, in principle, undermine the exclusive rights of the copyright holder of that material by, for example, depriving the copyright holder of the opportunity to claim an appropriate reward for the use of his or her work,” he explained.
WIPR has previously explored the case law surrounding communications to the public here.
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