June 6, 2017

This article was first published in the May edition of Digital Business Lawyer.

The Court of Justice of the European Union (‘CJEU’) handed down its decision in Stichting Brein v. Wullems t/a Filmspeler C-527/15 on 26 April 2017, providing copyright owners with a right to be used against defendants who do not originate the infringing sources of content; the ruling marks another important decision in a series of cases relating to the communication to the public right. The CJEU’s ruling clarifies that a media player marketed and sold with pre-installed add-ons that provides access to sources of content that are known to infringe copyright violates the communication to the public right.

The communication to the public right has been the subject of numerous decisions over the past decade, with recent cases such as Svensson and GS Media focusing on hyperlinking. The Filmspeler case arose due to a reference for a preliminary ruling from the District Court of Central Netherlands in a dispute between the Dutch anti-piracy organisation Stichting Brein and Jack Frederik Wullems over the sale of various models of the multimedia player ‘filmspeler.’ The filmspeler multimedia player allowed users to stream audiovisual content from a website and had add-ons installed on it containing hyperlinks which redirected users to streaming websites, controlled by third parties, on which films, television series and sporting events could be viewed free of charge. Stichting Brein sued Wullems for copyright infringement before the District Court, claiming that by selling the filmspeler player, Wullems was carrying out a ‘communication to the public’ contrary to Dutch copyright law. The question posed to the CJEU by the District Court was whether GS Media could be extended to a situation in which the defendant did not itself provide the hyperlinks but sold a media player on which hyperlinks had been installed. The CJEU also had to decide whether the temporary copies made on the multimedia player when content was streamed could benefit from the temporary copies defence in the Copyright Directive.

“In the Filmspeler judgment, the CJEU was faithful to its own case law and reached a decision on two vitally important points for the protection of copyright online,” said Ted Shapiro, Partner at Wiggin LLP. “In finding that the exclusive right of communication to the public (Article 3 of the Copyright Directive) extends to the sale of multimedia players loaded with pre-installed hyperlinks to infringing websites that offer unauthorised access to copyright protected works, the CJEU confirms the legal basis for combating an activity which is extremely harmful to the audiovisual sector. In this case, the players were devised to attract subscribers from mainstream pay services and advertised as a means of avoiding payment for content and of putting Netflix out of business. The decision goes further, confirming that streaming from illegal sources is not covered by the temporary copy exception in Article 5(1) of the Copyright Directive. This confirms a longstanding interpretation that has important repercussions for the legal protection of technological measures (Article 6) and the ability to secure injunctions against intermediaries (Article 8(3)).”

Shaprio continues that “While the CJEU is sometimes inconsistent in its application of the three-step test (Article 5(5) which provides a limitation on the scope of permissible copyright exceptions), the decision provides useful guidance in respect of the second and third steps of the test (though note if you fail to pass the second, there is no need to consider the third). For example, the CJEU recognises that if the temporary copy exception operated to exclude transient acts of reproduction of protected works streamed from illegal sites, this would adversely affect rightsholders’ ability to effect normal exploitation of such works i.e., license those works directly to legitimate online platforms. Thus, it is not appropriate that the exception be interpreted as extending to such activity,” explains Shapiro. “Finally, the first part of the decision could also be said to provide some comfort to the Commission’s approach to bridging the so-called value gap (see Article 13 and Recital 38 of the Proposed Copyright in the DSM Directive).”

The CJEU’s next decision relating to the communication to the public right relates to Stichting Brein v. Ziggo BV C-610/15, which involves Stichting Brein’s application to require Dutch ISPs to block access to the Pirate Bay. Advocate General Szpunar delivered his Opinion on 8 February 2016 that the Pirate Bay does infringe the communication to the public right when it is aware of the presence of an infringing work on its network and does not remove that work. The CJEU’s forthcoming decision will help to determine how far the communication to the public right can be used to find other ‘intermediaries’ liable for copyright infringement.