Cross-checking the recitals: the exclusion of ‘the mere provision of physical facilities’ from the right of communication to the public in recent CJEU case law

In its two recent decisions in Blue Air Aviation and Ocilion IPTV, the Court of Justice of the European Union has considered the exclusion of ‘the mere provision of physical facilities’ from the scope of the right of communication to the public under Article 3 of Directive 2001/29 (InfoSoc Directive). This article explores whether the understanding applied by the Court in these decisions is consistent with the international origins of the exclusion and previous case law of the Court. The article explains why the decision in Blue Air Aviation seems to diverge from previous case law, while this does not appear to be the case in Ocilion IPTV. Further, the article argues that the uncertainties regarding the scope of the concept of ‘act of communication’ is caused by the Court’s extensive understanding of indispensability, rather than its interpretation of ‘the mere provision of physical facilities’.