The Autonomous Legal Concept of Communication to the Public in the European Union

Abstract: In the last decades, the manner in which we access, consume, and enjoy content has changed. The traditional way of availability of content was predetermined. In order to access content, one was required to be at a certain place in a specific time. Today, the content is available from a place and a time individually chosen by the end user and oftentimes accessed, consumed, and enjoyed over the internet. The infrastructure of the internet – for online availability of content – is becoming more and more complex. One of the reasons for this complexity can be found in an economic right of the copyright holder. This specific economic right – although found in other EU harmonising measures – is embodied in Article 3 InfoSoc Directive, which is an implementation of Article 8 WCT in EU law. The right of communication to the public, which includes the right of making available to the public (legal concept of the economic right), has in recent decades become the main economic right of a rightholder in digital realities. This economic right serves as a vehicle whereby the rightholder can prevent content from being made available online, or conversely, allow it to be. The reason why the legal concept of the economic right is aiding complexity of online availability of content is the legal uncertainty about the scope of the said legal concept. This legal uncertainty – among other issues of legal complexity – is facilitated by the interpretations of the CJEU. The legal complexity of online availability of content reflects the following factors: the plurality of legal sources for the legal concept of the economic right; the heterarchical relationship between these sources; the three expansive legal systems in which this legal concept can be found (national, EU and international); the competing legal sources on fundamental rights; and the competing realities (physical and digital). Consequently, the main origin of this complexity is twofold. It consists of the overlapping legal systems and of the overlapping realities in which these legal systems operate. The present study concentrates on the legal concept of the economic right from an EU perspective and describes and analyses the relationship between the systems on that basis. Furthermore, the legal analysis of the present study is applied to technological environments represented in the form of communication models that seek to portray how the legal concept of the economic right operates. The depiction of these technological environments provides an explanation of the environment wherein acts of communication and acts of making available occur, thereby throwing light on the nature of these acts and providing clarity on the questions of potential infringement. The right of communication to the public is exercised in linear technological environments that are traditionally found in physical realities – yet not exclusively, whereas the right of making available to the public is exercised in non-linear technological environments that are exclusively found in digital realities. The contribution of the present study to existing legal research is twofold. Firstly, it emphasises the legal standing and effect, from a constitutional perspective, of autonomous legal concepts of EU law. Secondly, it applies the legal concept of the economic right to communication models in order to explain how the said right operates in digital realities.