The Drama of the “New Public” Theory in the Case Law of the CJUE regarding the communication to the public of copyright work

Abstract

T

he Court of Justice of the European Union has delivered several preliminary rulings on the interpretation of the right to communication to the public of copyright works. The present article examines the case law of the Court regarding the act of communication to the public in the form of posting hyperlinks and the theory of the "new public" and argues that this theory, as well as the subsequent theories and criteria adopted by the Court with the purpose of correcting the deficiencies of the former, are incompatible with the principles of copyright law and are in conflict with the international norms and the provisions of the Infosoc Directive.

Therefore, the first section of the study sums up the international and European legal background of the right of communication to the public, emphasizing that the international conventions are binding for all their members including the EU. The consequent sections present and analyze those judgements of the Court of Justice which have contributed to the establishment or maintenance of the ‘new public’ theory, in spite of the reproving opinions of numerous copyright specialists. Regarding the widely spread use of hyperlinks and the practical implications of the misinterpretation of the communication to the public, such as the exhaustion of the author’s right or the introduction of formalities for copyright protection, the author of the article hopes that the present study will be of interest not only for researches of copyright law, but for legal practitioners, as well.