The paper reviews the various questions concerning the concept and right of communication to the public in the request for preliminary ruling in the GEMA v. REHA Training case stressing it offers a good opportunity for a review and consolidation of the case law of the CJEU on the right of communication to the public. As regards the „new public” criterion introduced by the CJEU as a condition of applicability of the right of communication to the public, the paper describes and discusses how the Court based this theory exclusively some comments in a nearly 40-year-old Guide of WIPO of a general introductory nature by considering it as a reliable source, when even that publication written in an “easy style” did not suggest the applicability of such a criterion and when the truly reliable sources – the text and „preparatory work” of the Berne Convention as duly interpreted, the resolutions and decisions of the competent WIPO bodies, the authoritative treatises on the Convention, as well as a new WIPO Guide – all make it clear that the application of such a criterion would be in conflict with the Convention. It is pointed out that the adoption of the erroneous “new public” theory took place because the parties and other participants in the cases concerned had not identified those decisive sources and, thus, the Court was not duly informed. The paper also discusses the reasons for which the criteria applied by the Court in the SCF v. Del Corso case (to which the request for preliminary ruling in the REHA Training case refers) concerning the profit-making nature of the acts of communication and the active attitude of the members of the public as conditions of the application of the right of communication to the public are not in accordance with the Berne Convention and the EU Directives either. The paper suggests that the non-application of the right of communication to the public in the SCF v. Del Corso case might only be in accordance with the treaties and the acquis if it were regarded as to be based on the de minimis principle by having taken into account the various specific aspects of the case, not as definitional criteria of the concept of communication to the public but only as justifying in the given concrete situation, when considered together in a cumulative manner, an exception to the application of the right of communication to the public. It is added that, in the REHA Training case, the same specific aspects justifying such a de minimis exception are not present.

The paper analyses the Advocate General’s opinion presented in the Stichting Leenrecht case (Case-174/15), inter alia, in the light of the UsedSoft and Allposters cases ( Case C-128/2011 and Case C-419/13 ). On the bases of the analysis it seems that the AG’s legal arguments – on the basis of which he suggests that what is called „e-lending” is covered by the provisions of the Rental, Lending and Related Rights Directive on lending – are badly founded. As regards the AG’s legal-political arguments stressing the importance of library services, it is pointed out that, although they are valid, also a number of other public and private interests should be taken into account to consider whether or not there may be a need for legislative intervention concerning the complex issue and, if it may be the case, in which way.

In the short paper – based on an optimistic reading of the CJEU’s subsequent decisions on the concept and right of communication to the public – it is reviewed how the Court has made honest attempts to try to neutralize the negative effects of the badly founded „new public” criterion (adopted as a result of certain defective aspects of the current preliminary rulings system that do not guarantee fully and duly informed judgments).

This first commentary was published on my website on July 3, 2012, immediately after the Beijing Diplomatic Conference where the BTAP was adoped. It is uploaded again now that the website has been re-established after its recent collapse.