There is no end in sight regarding CJEU decisions on the meaning of “communication to the public“. On 26 April 2017, the European Court of Justice (CJEU) ruled (C-527/15 – Filmspeler) that the sale of a multimedia player with pre-installed add-ons that contained links to illegal streaming websites constitutes a copyright infringement. At the same time, the court clarified that the exemption for acts of temporary reproduction under Article 5(1) of the InfoSoc Directive 2001/29 did not apply.
The case was referred to the CJEU by a Netherlands district court. It focuses on the question of whether the sale of the multimedia player named “filmspeler” infringes copyright or not. The player, sold by the defendant creates a connection between a TV screen and audio-visual data such as online videos using a user-friendly interface. Additionally, the defendant installed several add-ons that – after a simple click – retrieve content from streaming websites and play the content on the multimedia player. Some of the content provided by the websites had been uploaded without the right holders consent. The defendant used this feature to advertise the product and promised easy and free access to illegally uploaded works.The Dutch foundation Stichting Brein, which protects the interests of copyright holders, sued the defendant and argued that the sale of the “filmspeler” would constitute a “communication to the public” in the sense of Art. 3 (1) of the InfoSoc Directive. The defendant denies this interpretation and additionally argues that the reproduction produced while streaming is covered by the exception for temporary copies according to Art. 5 (1) of the InfoSoc Directive.
The reviewing court, the Rechtbank Midden-Nederland, had doubts about the meaning of the EU provisions and therefore submitted in total four questions regarding their interpretation to the CJEU.
First, the CJEU addresses whether the sale of the multimedia player with the pre-installed add-ons constitutes a “communication to the public“. In line with its previous decisions the Court emphasizes the need for a broad interpretation of the term, as the goal of the directive is to establish a high level of protection for the copyright owners.
The core finding of the judgement is probably set out in recitals 41 and 42. Here, the judges explain why they deem that the sale of the “filmspeler” including the pre-installed add-ons goes beyond the “mere” provision of physical facilities for enabling or making a communication. Such provision is and shall remain outside the scope of Art. 3 (1) of the InfoSoc Directive. However, in this specific case, the judges emphasize that the defendant installed the add-ons in full knowledge that this would enable users to stream illegally uploaded content that they would have probably not found without the “filmspeler”.
The Court also refers to its decisions regarding hyperlinking in the Svensson and GS Media cases. According to the decision in Svensson, the act of providing a hyperlink on a website constitutes a “communication to the public” if the content was made available to a different audience via such a link, e.g. the content was originally behind a paywall. According to the decision in GS Media, hyperlinking to content that was uploaded without the consent of the copyright owner constitutes a “communication to the public” if the person providing the links intervenes to give access to a work and he knew or should have known about the lack of consent.
The CJEU followed the Advocate General in his opinion that there is no difference between providing a hyperlink on a website and installing add-ons containing links on a mediaplayer. The defendant intervened by enabling a direct link between the websites broadcasting illegal content and the purchasers of the media player. Since the defendant advertised his product by highlighting the special feature that allows streaming of illegal content, the Court decides that there was knowledge of the illegal nature of the content. Further it was apparent that the media player was sold as a commercial activity. The Court therefore decides there was a “communication to the public“.
In the second part of the decision, the question was whether the defendant can rely on the exception set out in Art. 5 (1) of the InfoSoc Directive for temporary reproduction. There are five cumulative elements that are required in order for a copy to be covered by the exception:
(1) the act must be temporary,
(2) it must be transient or incidental,
(3) it must be an integral and technical part of a technological process,
(4) the sole purpose of that process must be to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or subject matter, and
(5) that act should not have any independent economic significance.
The CJEU emphasizes in this context that the provision should be interpreted narrowly and that it should only apply in certain special cases. Here, the court finds that the temporary reproduction on the multimedia player affects the normal exploitation of the works and causes unreasonable prejudice to the legitimate interests of the copyright holders and therefore the exemption did not apply.
The decision clearly widens and shifts the understanding of what constitutes a “communication to the public” into the direction of measures that appear rather preparatory. Right holders in particular will appreciate this development. Still, it seems to be a tricky question where to draw the line between mere provision of physical facilities for enabling communication, and direct communication to the public itself. In the present case, the underlying facts formed a quite remarkable situation, particularly when taking into account that the defendant advertised his product with a clear encouragement to break the law. Against this background, the outcome seems to be “right”. However, one may question whether the reasoning behind this decision can apply to other situations. At least, there must remain room for provision of physical facilities outside the scope of Art. 3 (1) of the InfoSoc Directive.
We expect to see further litigation in this area as right holders continue to test the boundaries of the right to “communicate to the public” and the next CJEU decision regarding “The Pirate Bay” website (C- 610/15 – Ziggo) and the meaning of “communication to the public” is just around the corner.