Case Nos: IL-2023-000080 and IL-2024-000038 - [2025] EWHC 2561 (Ch)

Fecha: 10-Oct-2025

Communication to the public

Communication to the public

99.

Section 20 of the 1988 Act states, so far as is relevant:

‘20 Infringement by communication to the public

(1)

The communication to the public of the work is an act restricted by the copyright in—

(a)

a literary, dramatic, musical or artistic work,

…

(2)

References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include—

…

(b)

the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.’

100.

In Warner Music UK Ltd v TuneIn Inc [2021] EWCA Civ 441 Sir Geoffrey Vos MR described communication of a copyright work to the public as ‘a difficult area of law’ which ‘gives rise to frequent issues and potential anomalies’ (at [198]). In this judgment it is not necessary, nor would it be helpful, to explore the difficulties. The law as it stood in March 2021 was set out by Arnold LJ in Warner Music at [70]-[72]. I draw the following propositions from Warner Music and the judgments of the CJEU cited therein:

(1)

A user makes an act of communication when it intervenes, in full knowledge of the consequences of its action, to give its customers access to a protected work, particularly where, in the absence of that intervention, those customers would not be able to enjoy the work, or would be able to do so only with difficulty ([70(8)]).

(2)

It is sufficient for there to be communication that the work is made available to the public in such a way that the public may access it, whether or not they actually access it ([70(9)]).

(3)

The ‘public’ refers to an indeterminate number of potential recipients and implies a fairly large number of persons ([70(11)]).

(4)

Where the posting on a website of a hyperlink to protected works is done in the pursuit of financial gain, knowledge of the illegal nature of the publication of those works on that other website is presumed ([70(15)]).