The mere provision of physical facilities for acts of communication to the public revisited-joined cases Blue Air and CFR (C-775/21) and (C-826/21)

The inclusion of the term "mere provision of physical facilities", as evidenced in the preparatory works for the World Intellectual Property Office Copyright Treaty (WCT), was to shield internet service providers (ISPs) from liability for infringing communication to the public originating...

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Bibliographic Details
Published in:European intellectual property review 2023-09, Vol.45 (9), p.551-556
Main Author: Branka Marusic
Format: Article
Language:English
Subjects:
Communication to the public right
Copyright
Copyright works
Court of Justice of the European Communities
EU law
Intellectual property
Internet service providers
Music
Public transport
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Summary:The inclusion of the term "mere provision of physical facilities", as evidenced in the preparatory works for the World Intellectual Property Office Copyright Treaty (WCT), was to shield internet service providers (ISPs) from liability for infringing communication to the public originating with a third party. In the European Union (EU), this term has been introduced as a recital to the InfoSoc Directive, and as such was applied beyond its original purpose. Primarily, it has been applied to related rights and secondly, it has been applied in physical realities, assessing liabilities of hotels, rental cars, aircraft, and trains for copyright infringement. The assessment was based on focusing both on what is a "physical facility" as well as what is a "mere provision". The Blue Air and CFR case offers us two insights into the "mere provision". The first insight is that a mere provision can be automatic in nature. The second insight is that the automation that enables an act of communication can be for the benefit of travellers independently of their will.
ISSN:0142-0461