Copyright: when is content public?

Intellectual property law is constantly developing and has tremendously grown recently. This can be seen, amongst others, in copyright law. Nowadays, almost everyone is on Facebook, Twitter or Instagram or has his own website. People therefore create much more content than they used to do, which is often published publicly. Moreover, copyright infringements take place much more often than they took place in the past, for example because photos are published without permission from the owner or because internet makes it easier for users to gain access to illegal content.

Publication of content in relation to copyright has played an important role in in three recent judgements from the Court of Justice of the European Union. In these cases, the concept of ‘making content publicly available’ was discussed. More explicitly, it was discussed whether the following actions fall within the scope of ‘making publicly available’:

  • Publishing a hyperlink to illegally published, leaked photos
  • Selling media players that provide access to digital content without permission of the holders of the rights with regard to this content
  • Facilitating a system that allows users to track and download protected works (The Pirate Bay)

Within copyright law

‘Making publicly available’, according to the Court, should not be approached technically, but functionally. According to the European judge, references to copyright-protected works that are stored somewhere else are equated to, for example, the provision of an illegally copied DVD.[1] In such cases, there may be an infringement of copyright. Within copyright law, we therefore see a development that focusses more practically on the way that consumers acquire access to content.

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[1] Sanoma/GeenStijl: ECLI:EU:C:2016:644; BREIN/Filmspeler: ECLI:EU:C:2017:300; BREIN/Ziggo & XS4ALL: ECLI:EU:C:2017:456.

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