Public performance under German and European copyright law: The current situation

The right of communication to the public is of particular importance in copyright law. This exclusive right enables the author to exploit their work in an intangible form and thus, in practice, to receive financial compensation for their creative work. The 2001 Information Society Directive, which aimed to harmonise copyright law at European level, also addressed the right of public communication and established what was thought to be a European legal framework. In the years that followed, the European Court of Justice repeatedly clarified fundamental issues concerning the right of public communication, and some of its decisions were met with surprise. Following a brief introduction to the fundamentals of public communication, this paper discusses the limitations on this right under German copyright law and the positions of the Federal Court of Justice and the ECJ; it highlights differences and explains the associated limitations for German law as they currently stand. Furthermore, using significant examples of important court rulings, the paper aims to analyse the potential problems in the ECJ's decision-making process.