December 12, 2016

The claimant, Stichting Brein, was a Dutch foundation involved in the protection of copyright and other related rights. Its patrons include film producers, film distributors, multimedia producers and publishers.

The defendant, Jack Frederik Wullems, sold a multimedia player under the name “filmspeler” through various websites (including his own, www.filmspeler.nl). When connected to the internet and to a TV screen, the device enabled the user to stream images and sounds from certain websites.

Mr Wullems purchased the hardware for the filmspeler and then installed open source software that allowed users to open files through a user-friendly graphic user interface via menu structures. He also installed add-ons, i.e. separate software files created by third parties and freely available on the internet, which he integrated into the software user interface.

The add-ons contained hyperlinks, which redirected the user to streaming websites, controlled by third parties, on which films, television series and live sporting events could be enjoyed free of charge. The digital content would start to play automatically when the relevant hyperlink was clicked. In 14 of the add-ons the links led to websites streaming unauthorised digital content.

The Dutch courts asked the Court of Justice of the European Union whether the sale of a media player, in which add-ons have been installed that contain hyperlinks to websites on which copyright protected works are made directly accessible without the consent of the rights holders, amounts to “communication to the public” within the meaning of Article 3(1) of the Copyright Directive (2001/29/EC).

Advocate General Campos Sánchez-Bordona noted that the question was essentially the same as that asked in Case C-160/15 GS Media BV v Sanoma Media Netherlands BV, except that in this case the hyperlinks in question were not on Mr Wullems’s website, but contained in software add-ons installed in the media players he sold.

Mr Wullems argued that even if the concept of “communication to the public” was interpreted broadly, it could not be extended so that it encompassed the sale of a multimedia player. The sale did not provide direct, but indirect, access to the unauthorised content, he said, so that the link between Mr Wullems and the making available to the public of the protected works was tenuous and merely formed part of a more extensive chain of broadcasting.

The AG did not agree, opining that marketing the filmspeler went beyond the mere sale of a technical accessory that simply enabled a “communication” to take place. Mr Wullems was in fact providing, inseparably, the necessary hardware and software aimed directly at enabling purchasers to access copyright-protected works on the internet without the consent of rights holders. Provision of that immediate access to an unspecified public was part of the added value of the service supplied by Mr Wullems, the AG said.

In the AG’s view, there was “no significant difference” between posting hyperlinks to protected works on a website and installing hyperlinks in a multimedia device designed specifically for use with the internet (in particular, so that, through it, users were able to access straightforwardly, directly and immediately, digital content made available without the consent of the rights holders). The provision of links to that protected content, the making available of that content to the public, was a feature common to both types of conduct, the AG said, and its apparently incidental or ancillary nature could not conceal the fact that the activities concerned were aimed at ensuring that anyone could, merely by clicking on the hyperlink, enjoy the protected works.

Therefore, in the AG’s view, the filmspeler carried out a “communication to the public” under Article 3(1).

The AG also opined that the sale of the filmspeler was not be covered by the exception in Article 5(1) allowing for temporary copies to be made as it did not satisfy the requirement of enabling “lawful use” of the copyright work and, in any case, did not fulfil the conditions set out in Article 5(5). (Case C-527/15 Stichting Brein v Jack Frederik Wullems (Advocate General Opinion), 8 December 2016 — to access the Opinion in full, go to the curia search form, type in the case number and follow the link).