The Quest for Balance in CJEU Copyright Jurisprudence, as explained by Judge Malenovský

By Marcella Favale, CREATe Researcher, and Research Fellow, Bournemouth University

logo_curiaOn 15 January, at a conference of ALAI Belgium (Association Littéraire et Artistique Internationale), Judge Jiří Malenovský of the Court of Justice of the European Union (CJEU) bravely faced a public of copyright scholars, many of whom had extensively raised concerns about decisions of the Court in their academic outputs. Malenovský is the Reporting Judge of a vast majority of copyright cases before the Court (analysed in CREATe’s study “Is there an EU Copyright Jurisprudence: An Empirical Analysis of the Workings of the European Court of Justice”). As far as European Copyright is concerned, he is The Copyright Judge.


This Annual Conference of ALAI Belgium focused on the principle of ‘communication to the public’, whose complexity was not only stated but also demonstrated by the delivered presentations. Crucially, these learned contributions did not hide their disappointment at the scarce enlightenment provided by the EU Court on the concept. Judge Malenovský’s talk, delivered in French, concluded the conference, and in his detailed defence of the Court, he set off to refute these criticisms, by explaining why and how the Court reached its conclusions.

Judge Malenovský started by mentioning the doubts that have been expressed by the literature on the interpretation of ‘communication to the public’ as an autonomous concept of European Law (SGAE, according to the Court’s critics, was issued in a sort of ‘Legal Nirvana’). It was Advocate General (AG) Sharpston, he reports, who first made clear that the 2001 directive on the Harmonisation of certain aspects of copyright and related rights in the information society would remain a ‘dead letter’ if the Court did not interpret the right of communication to the public as an autonomous concept of EU Law. This Opinion matured in full knowledge of the different stance taken in EGEDA, where this concept was not considered autonomous. And the Judges agreed with AG Sharpston. SGAE, continues Malenovský’s account, was the object of a pondered decision, not a hasty one as some literature had suggested.

Another common criticism directed at the Court, said Judge Malenovský, was its lack of respect for international conventions. In essence, critics argue that instead of interpreting the European directives in the light of international conventions, in a sort of ‘reversed process’ the Court interprets the international conventions in the light of the European directives. EU law thus moves farther and farther from the provisions of international law. Malenovský rebuked this reproach, and stated that most decisions, among which SCF, expressly cited the importance of international conventions (Disp. N. 1).

However, he says, it is true that they are not considered by the Court as the highest source of law, albeit ‘incontournable’. In SCF the Court expressed its position on international conventions: they are integral, but not superior to EU law. The Court considers that the international conventions are already incorporated in EU Law, hence the approach of the Court is ‘realist’. Besides, the consensus on which international conventions are based is on the one hand imprecise (or even vague) and on the other hand fragile (see ACTA). Moreover, some conventions are rather old and not adapted to new technologies (see Berne). Therefore, the Court considers ‘unpractical’ to subordinate the interpretation of EU Law to these conventions.

In addition, international conventions are sometimes semantically ambiguous. Judge Malenovský here mentioned that the several versions of Berne sometimes say ‘communication to the public’ and sometimes ‘public communication’. This inconsistency is aggravated by the linguistic regime of these conventions for which only a limited number of languages are authentic. Conversely, EU Law is based on the equal validity of all languages in which the directives are redacted.

In KADI (C-402/05) the Court has defined international conventions as having a rank supra-legislative but infra-constitutional: only Fundamental Rights have a constitutional rank in Europe. However, copyright is not the only fundamental right to be taken into account. While the Court since Promusicae does not stop recalling ‘at each possible opportunity’ the constitutional rank of copyright, as based on Article 17.2 of the Charter, this right, according to Judge Malenovský, ‘is not intangible’.

Other equally important rights have to be taken into account, such as Freedom of Information based on Art 11 of the Charter which underpins some copyright limits. The Court strives and will continue be striving to find a balance between these rights. Also because the protection granted to author’s rights by national and international conventions varies depending on the weight accorded to these competing rights.

For example in Svensson, the Court declared that when a work is published on line without restrictions, the target public is the internet at large. Therefore hyperlinking to this web site is not considered ‘communication to the public’. Some commentators opposed that this means that copyright is not protected on the Internet. This ruling, according to these criticisms, violates Article 5.2 – and plenty of other articles – of the Berne Convention (see ALAI Opinion 2014 here). This is because Svensson specifies that hyperlinking is not a communication to the public if no restrictions are implemented on the linked website. This means, a contrario, that if restrictions are applied the website is copyright-protected. But Art 5.2 of Berne states that ‘The enjoyment and the exercise of these rights shall not be subject to any formality’. Since copyright protection is in this case subordinated to the implementation of technological protections, this is not consistent with Article 5.2 [I spare the reader my opinion on the spectacular logic leap of this reasoning].

According to Judge Malenovský, the ruling in Svensson stemmed from the effort of the Court to strike a balance between the rights of the owners and the rights of the user. He repeated, very importantly: from a fundamental rights prospective Copyright and Freedom of Information are equivalent. Copyright owners ‘have not the privilege’ to ignore fundamental principles such as Freedom of Information. The requirement of implementing protection measures, Malenovský continued, not only cannot be interpreted as a formality (and therefore is not contrary to Art. 5.2) nor is it an excessive burden for content providers.

Other reported criticisms to the Court focused on the controversial concept of ‘public’. In particular, the debate focuses on the characteristics something must have in order to be qualified as ‘public’. Malenovský recalls that for SCF (§84) and SGAE (§38) the size of the public has to be important enough (‘fairly large number of persons’, SCF §84). European Judges did not invent this concept out of the blue. AG Sharpston followed the recommendations of the EU Commission which indicated as a criteria ‘the extent of the circle of potential recipients of the communication and its economic significance for the author’ (SGAE, Opinion §54). The concept was reinforced in SCF where a de minimis criterion was introduced: it is not ‘communication to the public’ if communication takes place towards a small or insignificant group of persons (§86). Critics of this ruling maintain that this criterion lacks objectivity. Malenovský cited their doubts: ‘How many people shall we consider sufficient to form a public? 500? 300?’ However, in the facts of SGAE the chosen public, targeted by the content provider, was considered sufficiently large both with respect to content provider and users. The de minimis definition of this concept, according to Judge Malenovský, stems from the very notion of ‘public’.

Other criteria to identify this notion are, Malenovský continues, not satisfactory; as for example the requirement that the public has to be undetermined. A number of cases before the CJEU (SGAE, SCF, Mediakabel, Lagardére) according to this Judge refer not to an ‘undetermined’ public but to a ‘undetermined number’ of members of the public; in a quantitative, rather than qualitative way.

It is only in SCF that the Court added a qualitative distinction: the communication can also take place in a private context, such as in hotel room. His Honor admits that the quantitative construct is a little ambiguous, but the forthcoming ruling in the case Reha Training will shed light on the matter (the Application in Reha Training (C-117/15) summarises the whole debate; the Hearing is scheduled for 19 January 2016),

Other criticisms of the Court by some literature focused on the lucrative character of the communication. But Judge Malenovský said that this criterion was already cited by AG La Pergola in EGEDA (Opinion, §24). This AG argued that according to the Berne convention the authorisation of the owner is necessary for all following acts that give rise to an exploitation of the work for profit. And this concept was taken up by AG Sharpston in SGAE (Opinion, §56). In short, although the profit-making nature of the communication is not irrelevant to determine the communication to the public, it is however not an essential condition. This principle was further clarified in ITV broadcasting (§42), which specifically says that the lucrative purpose is not a necessary condition to define ‘communication to the public’.

In SCF the Court argued that the lack of lucrative purpose ‘together with other conditions’ did not lead to a ‘communication to the public’. But then critics of the Court maintained that this ruling was incompatible with ITV broadcasting. Malenovský disagree. Unlike SGAE and ITV broadcasting, SCF does not refer to Article 3 but rather to Article 8 of the InfoSoc Directive. The latter merely has a economic nature. The considerations of the Court in SCF therefore are not transferrable to Article 3. The correct interpretation of the Court’s jurisprudence should suggest that the for-profit nature of the communication is not to be used as a criterion to determine the right of Communication to the Public (Art. 3) but to determine the extent of the Appropriate Remuneration (Art. 8). Moreover, the ruling of SCF suggests that these principles arise from the specific conditions of the facts before the referring court, and therefore they are not to be interpreted as general principles.

As for the over-commented and over-criticised concept of New Public, Malenovský reported that the Court realized that SGAE had operated a small revolution. National courts, such as the Spanish Supreme Court, have reversed their jurisprudence to adjust to this new concept. The principle of a New Public, as a public different from that to which the original communication is addressed, was confirmed by the Grand Chamber in FAPL. Critics have voiced that this notion is incompatible with Art. 11bis(1) of Berne (defining Broadcasting and Related Rights). The Court unduly interpreted Berne’s “new communication” with “communication to a new public”. However, Malenovský contends, their reading of the ruling is mistaken. He recalled that this principle is perfectly in line with the conclusions of not one but two Advocates General: La Pergola in EGEDA and Sharpston in SGAE. The first had argued that without the action of the hotel the customers could not have enjoyed in another way the communication, therefore this was a new public. The latter maintained that the history of Art. 11bis of Berne must be considered as a series of attempts to reinforce the protection of the author in view of technological evolution. Article 8 of WCT 1996 has completed Art. 11 of Berne by reinforcing copyright protection in the circumstances in which technology allows the retransmission of a communication to a certain number of people beyond the original target group. Malenovský was confident that this construct of New Public had not ‘fallen from the sky’ but enjoyed a large consensus within the Court. But it is a distinct concept from the notion of communication in a technical sense. Here the Court has declared that several communications using different technologies need always a specific authorization from the owner upon condition that this communication targets a public (ITV broadcasting). Moreover, this interpretation is confirmed in the recent SBS Belgium case (C 325/14) where the Court has declared that signal distributors are not a public.

In conclusion, Judge Jiri Malenovský affirmed that notwithstanding the numerous criticisms, the notion of Communication to the Public within the jurisprudence of the Court is coherent overall, and this would ensure the predictability of future rulings on this topic.

From our viewpoint, an important point of the talk of Judge Malenovský at ALAI Belgium was a confirmation of a quest for balance between the rights of the owner and the rights of the user of a copyright work which our paper just published in the Modern Law Review identified as an explicit and recurrent rhetorical figure in the copyright jurisprudence of the Court.

After the talk, we spoke with Judge Malenovský about our new study of the CJEU’s copyright jurisprudence. He had read it with attention and was pleased to see that a study had recognised the evolving focus of the Court on the balance between the rights of copyright holders and users (which we had linked to ‘judicial learning’ of the Reporting Judges). Malenovský, complementing the originality of our empirical approach, supported the idea of a follow-up study, exploring paths of specialist expertise within the Court.

Our CREATe paper had concluded with, what we thought was a rather bold recommendation:

Having diagnosed the state of copyright related judicial reasoning at the ECJ, what policy interventions would assist the Court to form a more coherent copyright jurisprudence? The most straightforward solution might introduce specialised (copyright or intellectual property) professionals into the European Court system in order to increase domain competence and predictability. Short of forming a specialist Court, interventions might include (i) reforming the rules of procedure by making criteria for the assignment of cases more explicit (enabling the systematic allocation of cases to certain chambers where new members might shadow reporting judges that have developed domain specific experience), and (ii) supporting judicial learning when members first join the Court (for example through training of référendaires in specialist domains). Exploring such options seriously would require the Court (and the European institutions that invented its governance) to look in the mirror, hold the gaze and recognise what they see. Empirical reflection may yet improve doctrine.

Our exploratory Journey to the Centre of the Court of Justice, it seems, is far from over.


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