Right of Communication to the Public
For over five centuries now copyright has played a controversial part protecting the rights of authors. What started to stop the coping of books now has extended to a level that will not just stop the copy of a book by a printer but also a music track or software. The new age of technology however brought new challenges for the courts as to the respect of how copyright infringement can take place. International organizations implement several legislations over the years in order to stop copyright infringement even with the most sophisticated ways. The latest legislation implemented by the European Union, the Information society directive and has an objective to stop this various sophisticated ways of infringing copyright and protect the authors work. This directive provides the right of communication to the public, which provides the author to prohibit or authorize someone to access his work. Whether the steps taken by the international organizations have achieved their purposes is something that will be discussed below.
Communication is a controversial Human right, allowing everyone to have the right to communicate. Communication has interpreted to very broad meaning and goes beyond the level to receive communication or to be given information. In nowadays communication expands to various ways of online technology. The right of communication to the public has roots from the Berne Convention for the protection of Literary and Artistic Works 1886. The modern incarnation of the communication right is to be found in WIPO Copyright treaty 1996. This exclusive right of the author can be found also in the Information society directive. The information society directive under article 3(1) it provides the authors, with the exclusive right to authorize or prohibit any communication to the public of the originals and copies of their works whether by wired or wireless means. Also under article 3(3) it provides that the right of communicating to the public and the right to the making available to the public of protected works will not be exhausted by any act of communication to the public or of making available to the public. Furthermore this right is protected under article 8 of the WIPO Copyright and under Article 11bis(i) of the Berne convention. These two articles were considered to play an important role in the interpretation of communication to the public. Base on Art. 11bis(1)(ii) it extends the right of communication to the public to cases where an additional audience is created for example giving the authors the right authorize or prohibit communication of their works in situations where advanced in technology has enable the communication. On the other hand Art.8 of the WCT supplements the Convention by providing an exclusive right of communication to the public on authors of all kind of works. The words of this provision it clear that article 8 WCT includes not only the concept of communication to the public, but also it provides a distinct right of making available to the public. Taking into account the directive it can be seen that the legislator has chosen not to define the notion of public neither any other similar directive nor legislation. This led to the members States to determine the meaning of the specify word. As a result now this word has been given different definitions and interpretation over the years. The broad meaning of this right can be found also in recital 23 of the directive which provides that the author’s right of communication to the public should be understood in the broad sense covering all communications to the public not present at the place where the communication originates. It is clear that the legislation provides a very broad meaning of this right and it was left to the states to decide whether an infringement falls under this provision. The directive has been implemented to many members states legislations and it has been applied in many cases. The UK adopted the measures contained in article 3(1) of the directive in Section 20 of CDPA as some other European Countries.
In order to have a better understating as to where this right applies it requires analyzing some cases that the courts apply this directive. The leading case in on the communication right is the case of Sociedad General de Autores v Editores de Espana (SGAE) v Rafael Hoteles SA this case SGAE , the Spanish collecting society which represents the authors and the publishers, issued legal proceedings against the Hotel owner for infringement of intellectual property rights, on the fact that the hotels rooms were equipped with televisions sets. The issue in this case was that an authorization for an act of communication to the public has not been requested. The SGAE sought for non-payment of the authorization fee. The national court has dismissed the case on the basis that the hotel rooms was strictly domestic location and therefore it could not constitute to an act of public communication and therefore not authorization was needed. The case was the referred to the ECJ. The court of appeal asked the ECJ to rule on three questions. The first question was whether the installation in hotel rooms of television sets to which a satellite or terrestrial television signals sent by cable constitute an act of communication to the public. Secondly the fact that the hotel was in a strictly domestic location can be regarded as communication to the public. And thirdly where a communication affected through television set inside a hotel bedroom is regarded as public because viewers have access to the work. The ECJ in their ruling considered the Berne Convention precepts regarding the authors’ rights to public communication. The court held that the installation of TV sets in the room that receives signal through cable does not constitute communication to the public. The ECJ gave a broad interpretation of communication to the public in this case, it was held that the distribution of a signal by means of television sets by a hotel to customers staying in its rooms and a technique is used to transmit the signal it will constitute the communication to the public right under article 3 of the InfoSoc Directive. The ECJ also added that the fact that the hotel had a private nature will not prevent the communication of a work by means of television sets from constitutes communication to the public. It was also noted that the communication to the public should be interpreted with a view to the overarching purpose of the Copyright directive to reward the authors. It was clear in this case that the ECJ interpreted the term communication to the public very broadly where even the private nature of a place can result to constitute communication to the public.
Moreover, under the directive and the Treaty, the right of communication to the public covers also the making available to the public of works in such a way that they can be access them from a place at a time individually chosen by them. The right of making available was extended in the case of Newzbin. In this case Kitchin J gave the term make available a more natural and ordinary meaning. The issue in this case was whether a site build to index and categorized could constitute the right of communication. The great significance of this case is that a website does not need to be the party actually transmitting the content to be making available. It is clear from this case also that the exclusive authors’ rights will extend also to websites. In this case although the website is outside the definition of broadcast, it is still under the restricted act of communication to the public, which is one of the most important since technology has become the main factor of copyright infringement. Therefore taking this case it is clear that even placing a work on website or facilitating a download from website for example by just providing a link will still constitute infringement and taking into account Recital 25 it describes this form of making available as interactive on demand transmissions it’s clear that all holders of copyright and related rights should have an exclusive right to respect it.
It is clear from these two cases that the courts will give a broad meaning of the communication right. This right can be classified to provide three key elements. Firstly, the element of broadcasting which is defined as an electronic transmission of visual images and applies as seen in the hotel case where a hotel relays television programs to individual guest rooms. The second element of the communication right is the exclusive right to make the work available to the public and taking into account Recital 25 of the directive it provides that this right will cover interactive on demand transmissions such as video on demand. But as seen above it will cover most internet transmissions even where a person places a word on a website. And the third element of the communication right is “to the public”. Taking into account the first case it will extend despite the private nature of a place and on the other hand despite the way that was made available to the public and this is what the ECJ keeps saying in their rulings, that the right of communication to the public must have broad meaning.
Furthermore even if the right to communication to the public has a broad meaning it will come across difficulties when it comes to the online environment since technology is always ahead of the legislation. An issue that may come across with this directive is that the directive refers to “the work” and as result this may lead to the interpretation that will not include small parts of the work. Therefore this is less likely to apply when part of the work is uploaded since in the case of torrents leechers will upload small packets also in order to have the end result. However this was also proven to be wrong after the ruling in the case of the Pirate Bay that even stretch the meaning of communication to the public to include this kind of websites also.
The right of communication to the public however is not always absolute, their several limitations and exceptions. These exceptions and limitations function to balance the economic interests of copyright holders and the user’s interests. These exceptions can be found in article 5(3) of the InfoSoc directive and provides that exceptions can be made in respect of benefiting teaching or scientific research, benefit people with a disability and more. Moreover under article 5(5) the exceptions and limitations provided shall only be applied certain special cases which do not conflict with normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the right holder. This also included in article 11(1) of the WCT. This leads to the three steps test under the Berne Convention which can be found in article 9(2) of WCT. Until now no interpretation was given for the three-step test and as result again the interpretation varies by the national law as a result some limitations maybe allowed in one country but in another not. More specifically taking the “certain special cases”, the WTO panel interpreted the term “certain” as clearly defined. This has a result that even in the cases of research and private studies to be very difficult to define and therefore even this case can fail under the first step test. The interpretation for the second element of the test “no conflict with a normal exploitation of a work” has similar issues. The WTO Panel held that exceptions that will fall under this element whenever they permit uses of a work that can compete economically with the ways which a right holder normally extracts. The main issue of the interpretation of this element it that requires all three elements of test to be satisfied in order for an exception to consider legitimate. It can be said that taking account the interpretations given by the Panel it hardly left any space for exceptions or limitations and therefore it would be very difficult for such an implementation. However it can still serve as to the balance of the readers and the authors because of the broad interpretation that it has.
Taking into account the legislation and the case law it can be seen that firstly the authors’ right of communication is merely used by authors but rather by the rights holders as seen by the cases showing the extend that the right can take. Also taking into account that the main objective of the directive for harmonization, it has failed since members states let the interpretation to the national laws and as result different interpretations across the globe. As result what is considered infringement in one country will not considered to the other. On the other hand the different interpretations given to the right it provides an obsess protection to the right holder owner and removes the balance between owner and the user since all the decisions are in favor of the right owner. Furthermore taking into account the exceptions and limitations there is hardly place for other exceptions and even in the case of research it will be difficult to prove it. Even if article 5(n) includes research or private study and sounds ok, but in an electronic environment id does not, since user has to go to the information and not the information to the user since the article says “dedicated terminal on the premises”, not even considering the case of downloading a book for review. It quite clear that under the directive is even more difficult to find defenses even if the purpose is legal offline.
In conclusion it can be said that the right of communication extends to online environment to a great extend even if it does not cover certain acts. The EU has taken a great step forward for the protection of the authors’ exclusive rights and it looks that it will not stop here, the courts in every case interpreted the right even broader almost leaving no space for offenders. The SGAE case is good example of what extend this directive can take and also in the cases of sophisticated ways of technology like the torrents will still fall under the provisions of the right of communication. This can consider a further issue since the directive and the treaty will always benefit the author and remove the balance that exceptions provide.
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Twentieth Century Fox Film Corp v Newzbin Ltd  EWHC 608 (Ch);  E.C.C. 13 (Ch D)
Public Prosecutor v Neij Unreported April 17, 2009 (TR (Stockholm))
Sociedad General de Autores v Editores de Espana (SGAE) v Rafael Hoteles SA  ECR I-11519
 Bride, M. (2004) Many voices, one world: towards a new, more just, and more efficient world, p 172
  ECR I-11519
 Arias, M. TV Signal in Hotel Rooms under the EU Copyright Directive
 Bulger, L. Are works communicated through television sets in hotel rooms a ‘communication to the public’?
 Twentieth Century Fox Film Corp v Newzbin Ltd  EWHC 608 (Ch);  E.C.C. 13 (Ch D)
 Backs, S. Twentieth Century Fox Film Corp v Newzbin Ltd – a changing tide in the fight against online piracy: how significant is the Newzbin judgment?
 Bainbridege, D. (2010) Intellectual property 8th Edition p170
 Kitchin J. on SGAE Case
 Rietjens, B. Give and Ye Shall Receive! The Copyright Implications of BitTorrent
 Public Prosecutor v Neij Unreported April 17, 2009 (TR (Stockholm))
 Edstrom, J. The Pirate Bay verdict – predictable, and yet…
 Correa, M. Research handbook on the protection of intellectual property under WTO rules p334
 Griffiths, J. Rhetoric & the “Three-Step Test”: copyright reform in the United Kingdom
 Mireille M., Van Eechoud M. and Bernt Hugenholtz, P. Harmonizing European copyright law: the challenges of better lawmaking