Swedish courts have had problems in determining how to handle the copyright issue, when a copy-right protected work is submitted to the courts as evidence. The rightholder has in several cases claimed that it is a violation of his or her copy-right, when the counterparty has submitted the copyright protected work as evidence in a dispute. Is the court in these cases to be seen as “the public”, so that a “communication to the public” or a “distribution to the public” has been committed, i.e. a copyright infringement? Should a party in a dispute have to consider this before submitting evidence?
On 28 October 2020 in Case C-637/19 the Court of Justice of the European Union ruled that a sub-mission to a court shall be deemed as sub-mitted “to a clearly defined and closed group of persons holding public service functions within a court, and not to an indeterminate number of potential reci-pients”. Accordingly, the court is not to be seen as “the public”. Consequently, a “communication to the public” or a ”distribution to the public” is not committed, when a copyright protected work has been submitted to the court as evidence in judicial proceedings. In other words, the submission to the court does not constitute a copyright infringement.
In its judgment, the Court of Justice of the Euro-pean Union states that the right to effective reme-dy “would be seriously compromised if a right-holder were able to oppose the disclosure of evi-dence to a court on the sole ground that that evi-dence contains subject matter protected by copy-right”.
We cannot agree more and we warmly welcome this judgment from the Court of Justice of the European Union.