Il diritto di comunicazione e messa a disposizione del pubblico

In a number of decisions handed down in the last ten years the EU Court of Jus-tice has progressively expanded the notion of communication and making available of a work to the public in such a way to include acts which has no direct relation-ship with the works (allegedly) communicated, but which merely facilitate the ac-cess to them, such as the management of a peer-to-peer platform allowing sharing of protected works or the sale of a multimedia player on which there are pre-installed add-ons containing hyperlinks to websites on which protected works have been made available to the public. In order to do so, the EU Court of Justice has included in the definition of communication and making available to the public both objective and subjective criteria whose legal grounds are uncertain, at the very least: under this perspective, the so-called «new public» criterion is only the most prominent example. One of the side effects of the case-law of the EU Court of Justice has been to produce what has been dubbed an indirect harmonisation of indirect liability for copyright infringement, which has been criticized by many. This essay critically reviews the case-law of the EU Court of Justice concerning the right of communication and making available to the public trying to show that the several complementary, not autonomous and interdependent criteria introduced by the Court may be economically justified in the light of the general principle ex-pressed in the FAPL case according to which the specific subject-matter of the intel-lectual property does not guarantee the right holders the opportunity to demand the highest possible remuneration, but only a remuneration which is appropriate, i.e. reasonable in relation to the actual or potential number of persons who enjoy or wish to enjoy the work.