AG’s opinion—submitting evidence to court is not communication to the public (BY, Case C-637/19)

Article summary

IP analysis: Advocate General (AG) Hogan has given an opinion that submitting copyright protected material to court as evidence in civil proceedings does not constitute an act of communication to the public and, therefore, is not an infringement of the rightsholder’s exclusive rights. While sending copyright material by email is an act of communication by electronic means, the court should not be considered to be a ‘public’. Specifically, the court staff are a limited and defined group and are subject to legal and ethical restrictions—they are not free to use the work as they see fit. Even where third parties are able to access documents which sit on the court record, those third parties are not authorised to use the work as they see fit. Rather, they require authorisation from the copyright owner and may be denied access to material that is confidential. Written by Joshua Marshall, senior associate, at Fieldfisher LLP.