Nederlands Uitgeversverbond and Groep Algemene Uitgevers v Tom Kabinet Internet BV and Others.
Date: 2019-12-19
31


It should be noted as a preliminary point that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court has a duty to interpret all provisions of EU law which national courts require in order to decide on the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court by those courts (judgment of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 33 and the case-law cited).
32


To that end, the Court can extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation in view of the subject matter of the dispute in the main proceedings (judgment of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 34 and the case-law cited).
38


According to settled case-law, the interpretation of a provision of EU law requires that account be taken not only of its wording, but also of its context, the objectives pursued by the rules of which it is part and, where appropriate, its origins (see, to that effect, judgments of 20 December 2017, Acacia and D’Amato, C‑397/16 and C‑435/16, EU:C:2017:992, paragraph 31, and of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 47 and the case-law cited). EU legislation must, moreover, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the European Union (judgments of 7 December 2006, SGAE, C‑306/05, EU:C:2006:764, paragraph 35; of 13 May 2015, Dimensione Direct Sales and Labianca, C‑516/13, EU:C:2015:315, paragraph 23; and of 19 December 2018, Syed, C‑572/17, EU:C:2018:1033, paragraph 20 and the case-law cited).
39


In the first place, it must be noted that, as is apparent from recital 15 of Directive 2001/29, the directive serves, inter alia, to implement a number of the European Union’s obligations under the WCT. It follows that the concepts of ‘communication to the public’ and ‘distribution to the public’ referred to in Article 3(1) and in Article 4(1) of that directive must, so far as possible, be interpreted in accordance with the definitions contained, respectively, in Article 8 and in Article 6(1) of the WCT (see, to that effect, judgments of 17 April 2008, Peek & Cloppenburg, C‑456/06, EU:C:2008:232, paragraph 31, and of 19 December 2018, Syed, C‑572/17, EU:C:2018:1033, paragraph 21 and the case-law cited).
47


It is clear from recitals 2 and 5 of Directive 2001/29 that that directive seeks to create a general and flexible framework at EU level in order to foster the development of the information society and to adapt and supplement the current law on copyright and related rights in order to respond to technological development, which has created new ways of exploiting protected works (judgment of 24 November 2011, Circul Globus Bucureşti, C‑283/10, EU:C:2011:772, paragraph 38).
48


It is, moreover, apparent from recitals 4, 9 and 10 of that directive that its principal objective is to establish a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their works, including when a communication to the public takes place (see, to that effect, judgment of 19 November 2015, SBS Belgium, C‑325/14, EU:C:2015:764, paragraph 14 and the case-law cited).
49


In order to achieve that objective, ‘communication to the public’ should, as is underlined by recital 23 of Directive 2001/29, be understood in a broad sense covering all communication to the public not present at the place where the communication originates and, thus, any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting (see, to that effect, judgments of 7 December 2006, SGAE, C‑306/05, EU:C:2006:764, paragraph 36, and of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraph 17 and the case-law cited).
52


In the fourth place, an interpretation of the distribution right referred to in Article 4(1) of Directive 2001/29 as applying only to the distribution of works incorporated in a material medium follows equally from Article 4(2) of that directive, as interpreted by the Court in relation to exhaustion of that right, the Court having ruled that the EU legislature, by using the terms ‘tangible article’ and ‘that object’ in recital 28 of that directive, wished to give authors control over the initial marketing in the European Union of each tangible object incorporating their intellectual creation (judgment of 22 January 2015, Art & Allposters International, C‑419/13, EU:C:2015:27, paragraph 37).
53


Admittedly, as the referring court notes, the Court of Justice has ruled, in relation to the exhaustion of the right of distribution of copies of computer programs mentioned in Article 4(2) of Directive 2009/24, that it does not appear from that provision that exhaustion is limited to copies of computer programs on a material medium, but that, on the contrary, that provision, by referring without further specification to the ‘sale … of a copy of a program’, makes no distinction according to the tangible or intangible form of the copy in question (judgment of 3 July 2012, UsedSoft, C‑128/11, EU:C:2012:407, paragraph 55).
55


In that regard, first, as the Court expressly stated in paragraphs 51 and 56 of the judgment of 3 July 2012, UsedSoft (C‑128/11, EU:C:2012:407), Directive 2009/24, which concerns specifically the protection of computer programs, constitutes a lex specialis in relation to Directive 2001/29. The relevant provisions of Directive 2009/24 make abundantly clear the intention of the EU legislature to assimilate, for the purposes of the protection laid down by that directive, tangible and intangible copies of computer programs, so that the exhaustion of the distribution right under Article 4(2) of Directive 2009/24 concerns all such copies (see, to that effect, judgment of 3 July 2012, UsedSoft, C‑128/11, EU:C:2012:407, paragraphs 58 and 59).
56


Such assimilation of tangible and intangible copies of works protected for the purposes of the relevant provisions of Directive 2001/29 was not, however, desired by the EU legislature when it adopted that directive. As has been recalled in paragraph 42 of the present judgment, it is apparent from the travaux préparatoires for that directive that a clear distinction was sought between the electronic and tangible distribution of protected material.
57


Second, the Court noted in paragraph 61 of the judgment of 3 July 2012, UsedSoft (C‑128/11, EU:C:2012:407) that, from an economic point of view, the sale of a computer program on a material medium and the sale of a computer program by downloading from the internet are similar, since the online transmission method is the functional equivalent of the supply of a material medium. Accordingly, interpreting Article 4(2) of Directive 2009/24 in the light of the principle of equal treatment justifies the two methods of transmission being treated in a similar manner.
59


Even if an e-book were to be considered complex matter (see, to that effect, judgment of 23 January 2014, Nintendo and Others, C‑355/12, EU:C:2014:25, paragraph 23), comprising both a protected work and a computer program eligible for protection under Directive 2009/24, it would have to be concluded that such a program is only incidental in relation to the work contained in such a book. As the Advocate General noted in point 67 of his Opinion, an e-book is protected because of its content, which must therefore be considered to be the essential element of it, and the fact that a computer program may form part of an e-book so as to enable it to be read cannot therefore result in the application of those specific provisions.
61


In that regard, it is clear from Article 3(1) of Directive 2001/29 that the concept of ‘communication to the public’ involves two cumulative criteria, namely an act of communication of a work and the communication of that work to a public (judgment of 14 June 2017, Stichting Brein, C‑610/15, EU:C:2017:456, paragraph 24 and the case-law cited).
63


In addition, as regards the concept of ‘making available to the public’ within the meaning of that same provision, which forms part of the wider concept of ‘communication to the public’, the Court has held that, in order to be classified as an act of making available to the public, an act must meet, cumulatively, both conditions set out in the provision, namely that members of the public may access the protected work from a place and at a time individually chosen by them (see, to that effect, judgment of 26 March 2015, C More Entertainment, C‑279/13, EU:C:2015:199, paragraphs 24 and 25), irrespective of whether the persons comprising that public avail themselves of that opportunity (see, to that effect, judgment of 14 June 2017, Stichting Brein, C‑610/15, EU:C:2017:456, paragraph 31 and the case-law cited).
66


In the second place, in order to be categorised as a ‘communication to the public’ within the meaning of that provision, the protected works must in fact be communicated to the public (see, to that effect, judgment of 14 June 2017, Stichting Brein, C‑610/15, EU:C:2017:456, paragraph 40 and the case-law cited), that communication being directed at an indeterminate number of potential recipients (judgment of 7 December 2006, SGAE, C‑306/05, EU:C:2006:764, paragraph 37 and the case-law cited).
68


In that regard, the Court has previously had occasion to clarify, first, that the concept of ‘public’ involves a certain de minimis threshold, which excludes from that concept a group of persons concerned that is too small, and, second, that in order to determine that number, the cumulative effect of making a protected work available, by downloading, to potential recipients should be taken into consideration. Account should therefore be taken, in particular, of the number of persons able to access the work at the same time, but also of how many of them may access it in succession (see, to that effect, judgment of 14 June 2017, Stichting Brein, C‑610/15, EU:C:2017:456, paragraph 41 and the case-law cited).
70


Last, the Court has held that, in order to be categorised as a communication to the public, a protected work must be communicated using specific technical means, different from those previously used or, failing that, to a new public, that is to say, to a public that was not already taken into account by the copyright holders when they authorised the initial communication of their work to the public (judgment of 14 June 2017, Stichting Brein, C‑610/15, EU:C:2017:456, paragraph 28 and the case-law cited).