The EUD declares that it is not copyright infringement to provide evidence in a trial
The EUD declares that it is not copyright infringement to provide evidence in a trial
EUD declares that it is not copyright infringement to provide evidence in a trial
Two parents, A and B, have a custody dispute in Swedish courts.
A takes – from a website held by B – a copy of a photograph sent to the court by e-mail as evidence.
Since the Swedish principle of public access to information has a far-reaching right to access public documents, i.e. evidence submitted to a court.
B is of the opinion that the photograph constitutes a copyrighted work, and considers that A unlawfully infringed his copyright by making the photograph available to the public (Paragraphs 2 and 49a of the Copyright Act).
He therefore brings an action against A in the Patent and Market Court (PMD) seeking her to be ordered to pay damages.
The PMD considers that the photograph is, admittedly, a protected work under the Copyright Act (URL) and that A disseminated the work to the public by submitting it to the court.
On the other hand, it is not of the opinion that the spread has caused any harm to B and therefore does not award any damages.
B appeals against the case raised by the Patent and Market Court of Appeal (PMÖD).
Due to the principle of public access, PMÖD is not sure whether the fact that A sent the photograph to the Court by e-mail constitutes an accessibility to the public.
Copyright provisions are harmonised in the European Union (EU), which is why URL should be interpreted in the light of Directive 2001/29/EC of the European Parliament and of the Council (Copyright Directive).
The Court therefore submits a reference for a preliminary ruling to the Court of Justice (EUD) in order to clarify certain EU legal issues.
European Court of Justice
PMÖD would like to have clarified initially how Articles 3(1) and 4(1) of the Copyright Directive should be interpreted as not being sure which provision should be applied in the case.
The Articles provide, inter alia, that authors shall be given an exclusive right to authorise or prohibit any transmission (Article 3(1)) or 2 the dissemination (Article 4(1)) to the public of their works.
It also wants to know whether the filing of a copyrighted work in court may involve the transfer or dissemination referred to in the Articles.
Finally, PMÖD wishes to know whether the filing has the same effect and fulfils the same purpose whether it is by hard copy or, as in the present case, by e-mail.
The EUD states that Article 4 refers, in accordance with Union law practice, to the dissemination of physical copies of a copyrighted work.
In this case, therefore, It is Article 3 and the concept of {1>communication to <1}the public that are relevant for interpretation.
It is noted initially and without further justification that a transfer took place when the photograph was submitted to the Court.
As far as the general public is concerned, according to practice, an indeterminate number of recipients is considered to be the case and, moreover, requires quite a few persons.
The EUD considers that those serving in a court of law must be seen as a clearly defined and closed circle in the case of determined and individual professionals.
Thus, the fact that employees of the court have taken part in the photograph does not mean that there has been a transfer to the public according to the law.
Nor that the work may be disclosed to an indefinite number of private individuals prompts the EUD to make a different assessment, since it is then the Swedish court that publishes the photograph under controlled conditions to the person who asks for it.
Whether the submission to court was made by hard copy or e-mail does not matter either.
The EUD also underlines that the right to an effective remedy (Charter of Fundamental Rights of the European Union, Article 47) would be jeopardised if rightholders could object to certain evidence being submitted to court simply because it contains a copyright-protected subject matter.
In conclusion, the EUD’s answer to PMÖD’s questions is that the concept of communication to the public in Article 3(1) does not include the electronic filing of a copyrighted work with a court in a private-private case.