Why ‘New Public’ is the Wrong ‘Public’ for the Communication to the Public Right under EU Copyright Law

Justin Koo, PhD Candidate at King’s College London

The communication to the public right under EU copyright law has increasingly been under scrutiny in the last few years due to several important decisions delivered by the Court of Justice of the European Union (CJEU). The consequence of this intense focus has been the increasing recognition and criticism that aspects involved in the application of the communication to the public right are not legally sound and potentially unjustifiable and indefensible. One such aspect is the ‘new public’ criterion. Perhaps, it can be said that the ‘new public’ criterion is one of the defining concepts of the communication to the public right because it ultimately determines the finding of liability, but for where a ‘communication’ is made by a ‘different technical means’.[1] As such, it is necessary to illustrate why the ‘new public’ criterion is ill suited to EU copyright law and moreover, why the ‘new public’ criterion should be abandoned. Continue reading “Why ‘New Public’ is the Wrong ‘Public’ for the Communication to the Public Right under EU Copyright Law”