Last week the CJEU issued its decision in the latest case concerning the European concept of 'communication to the public' under Article 3(1) of the Copyright Directive, Stichting Brein v Filmspeler (Case C-527/15). The court's decision largely follows the Advocate General's opinion (which we covered in our blog here) and continues the expansion of 'communication to the public' to protect the rights and interests of rights-holders, evolving the concept to account for the fast developing digital environment.
Development of communication to public
The Dutch court sought guidance on how 'communication to the public' should be interpreted in a situation where someone sells a product (e.g. a media player) in which he has installed add-ons containing hyperlinks to websites on which copyright-protected works are made directly accessible, without the right-holder's consent. The CJEU was particularly asked to consider the effect of factors including whether a subscription was required to access the content, whether the right-holders had provided authorisation and whether the material could be accessed by the public without the device in question.
The CJEU applied a structured approach, summarising the key issues from the previous cases from Svensson to GS Media (see our previous blogs here and here, respectively). It set out the following criteria which will provide useful guidance in applying a test to future cases:
The concept should be interpreted using the recitals and in light of the objectives of the Copyright Directive (2001/29/EC) (the "Directive") and the context i.e. "to establish a high level of protection for authors" so the concept "must be interpreted broadly";
The criteria should be applied both individually and in interaction with one another;
A user makes an act of communication when he intervenes, in full knowledge of the consequences, to give access to a protected work to his customers, in particular where his customers would not otherwise be able to enjoy the broadcast of that work;
'Public' refers to an indeterminate number of potential views and implies a fairly large number;
A work must be communicated using specific technical means different from those used previously or to a new public;
Where a person knows or ought to have known (particularly if they circumvent restrictions) that a hyperlink he posted provides access to a work illegally placed on the internet, the provision of that link constitutes a 'communication to the public';
Where the posting of hyperlinks is for profit, it is expected that the person posting such links caries out the necessary checks to ensure the work concerned is not illegally published on the website;
The profit-making nature of the communication is not irrelevant; and
The mere provision of a physical facility for enabling a communication does not in itself amount to a 'communication'.
Mr Wullems (trading as 'Filmspeler') sold media players which connected sources of data with a television screen i.e. set-top boxes. Filmspeler installed open source software (which had been created by third parties) on these players to make it possible to play files in a user-friendly interface via structured integrated menus, from third party sources on the internet specifically including websites on which protected works are made available to internet users without the copyright owners' consent.
Filmspeler advertised these players stating expressly that the main attraction was to allow users to watch, on a television screen, freely and easily, audio-visual material available on the internet without the consent of the copyright holder.
Communication to the public
In applying the criteria set out above, the CJEU repeatedly refers to the "full knowledge" of Filmspeler, the "deliberate" act of installing the add-ons, that the content of the adverts made it clear that the "main attraction of such players" was to enable people to watch, freely and easily on a television screen, audio-visual material available on the internet without the consent of the copyright holder and the profit-making nature of the activities. Without Filmspeler's intervention, "purchasers would find it difficult to benefit from the protected works" and many of the websites would not be readily identifiable by the public and would also change frequently.
This led to the CJEU's decision that such players were more than a 'mere' facility and that the sale constituted a 'communication to the public'.
Temporary copies defence
To complement the broad interpretation given to the right in Article 3(1), the court held that the defence in Article 5(1) of the Directive, to provide an exception to allow an act of temporary reproduction to enable a lawful use of the work, should be interpreted strictly. The court applied the three-step test from the Berne Convention and Article 5(5) that any exception should: (1) only be applied in certain special cases, (2) not conflict with the normal exploitation of the work, and (3) not prejudice the legitimate interests of the right holder.
The court held that "as a rule, temporary acts of reproduction on a multimedia player such as that at issue in the proceedings, of copyright-protected works obtained from streaming websites belonging to third parties offering those works without the consent of the copyright holders are such as to adversely affect the normal exploitation of those works and causes unreasonable prejudice to the legitimate interests of the right holder". Therefore the conditions of Articles 5(1) and 5(5) would not be satisfied and Filmspeler would have no defence under this provision.
This case will be of interest to many in the audio-visual industry attempting to tackle the influx of those seeking to push the legal boundaries with emerging technologies. It is crucial in identifying, not just the acts which can infringe copyright, but also in identifying who can be liable for primary infringement of copyright. Furthermore, it covers streaming rather than just downloading unauthorised content.
The main concern of both the CJEU and AG was clearly the deliberate acts undertaken to provide consumers with easy access to audio-visual material and particularly to restricted and unauthorised content. This was the main attraction of these media players; Filmspeler's primary aim was clearly to make a profit by the provision of this access. This approach will therefore be useful to rights-owners where faced with potential infringement on a commercial scale.
The CJEU was not concerned with whether it would be impossible for users to access the content without this intervention or the test of an "indispensable" role, but rather how much easier it was. By broadening both the scope of infringement and any potential infringers, this case may deter some, particularly businesses with a reputation at risk, from engaging in any part of a chain involving potentially infringing activities.
This wide approach to 'communication to the public' has come under criticism by some due to its use against those who do not originate infringing sources of content. The net for liability has become broader as a result. However, this is in line with the stated aims of the Directive and sharpens the concept as a tool for rights-holders who may otherwise struggle to protect their interests; it shows the flexibility of the law to tackle the evolving nature of piracy and stop the exploitation of emerging re-purposed technologies to engage in large scale copyright infringement. Although based on an apparently narrow factual background, the implications of this case are likely to be wide reaching.
As set out in the AG's opinion, most national governments who provided submissions in this case supported this outcome; although notably the European Commission considered that the media players should be deemed as 'mere facilities' and that they only enabled rather than were themselves communications. This is in line with the Commission's approach to other areas where it appears to give greater weight to the rights of consumers above those of rights-holders and creators.
The next decision to watch out for from the CJEU on this concept is its ruling in Stichting Brein v Ziggo BV (Case C-610/15) regarding The Pirate Bay website. The AG opinion (on which we blogged here) was published in February 2017.
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