The Requirement for a "New Public" in EU Copyright Law

This article deals with a doctrinal shift in the understanding of what amounts to an actionable communication of copyright works to the public. Recent rulings of the European Court of Justice hold that infringement takes place where a communication is addressed to a "new public", i.e. a public that copyright holders had not taken into account when authorising the initial communication of the work. This newly developed doctrine develops a sui generis legal fiction that fundamentally changes the communication right; it both restricts and expands its scope in ways that were not foreseen when the right was first introduced in international law, European copyright law and the national laws of Member States. In its unnecessary complexity, the concept of the new public indicates that the extremely broad scope of the communication right is unworkable and counterproductive, thereby inviting a principle-based approach, according to which lawful and strictly private use ought to be exempt from infringement.