In Case C-527/15 Stichting
Brein, the Court of Justice of the Euopean Union has ruled that the sale of
a multimedia player which enables films that are available illegally on the
internet to be viewed easily and for free on a television screen could constitute
an infringement of copyright. In its judgment, which
is available here, the CJEU held that the temporary
reproduction on a multimedia player of a copyright-protected work obtained by
streaming is not exempt from the right of reproduction.
Facts
Mr Wullems sells, over the internet, various models of a
multimedia player under the name ‘filmspeler’. That device acts as a medium
between a source of audiovisual data and a television screen. On that player,
Mr Wullems installed an open source software that enabled files to be played
through a user-friendly interface, via structured menus. In addition,
integrated into the player were add-ons available on the internet whose
function is to retrieve the desired content from streaming websites and make it
start playing, on a simple click, on the multimedia player connected to a
television. Some of those internet sites give access to digital content with
the consent of the right holders, whilst others give access without their
consent. According to the advertising, the multimedia player made it possible,
in particular, to watch on a television screen, easily and for free,
audiovisual material available on the internet without the consent of the
copyright holders.
Stichting Brein, a Netherlands foundation for the protection
of the interests of copyright holders, asked the Rechtbank Midden-Nederland
(District Court of Midden-Nederland, Netherlands) to order Mr Wullems to cease
selling multimedia players or offers of hyperlinks that illegally give users
access to protected works. Stichting Brein submitted that, by marketing that
multimedia player, Mr Wullems had made a ‘communication to the public’ in
breach of the Netherlands law on copyright which transposed Directive 2001/29. The
Rechtbank Midden Nederland decided to refer a question to the Court of Justice
on that subject.
Judgment
The Court of Justice holds that the sale of a multimedia
player, such as the one in question, is a ‘communication to the public’, within
the meaning of the directive.
The Court recalls, in that regard, its case-law according to
which the aim of the directive is to establish a high level of protection for
authors. The concept of ‘communication to the public’ must therefore be
interpreted broadly. In addition, the Court has already held that the
availability, on a website, of clickable links to protected works published
without any access restrictions on another website offers users of the first
website direct access to those works. That is also the case in respect of a
sale of the multimedia player in question.
In the same way, Mr Wullems, in full knowledge of the
consequences of his conduct, preinstalls, on the multimedia player add-ons that
make it possible to have access to protected works and to watch those works on
a television screen. Such actions are not to be confused with the mere
provision of physical facilities, referred to in the directive. In that regard,
it is clear from the observations submitted to the Court that streaming
websites are not readily identifiable by the public and the majority of them
change frequently.
The Court also observes that, according to the referring
court, the multimedia player has been purchased by a fairly large number of
people. Furthermore, the communication at issue covers all persons who could
potentially acquire that media player and have an internet connection. Thus,
that communication is aimed at an indeterminate number of potential recipients
and involves a large number of persons. In addition, the provision of the
multimedia player is made with a view to making a profit, the price for the
multimedia player being paid in particular to obtain direct access to protected
works available on streaming websites without the consent of the copyright
holders.
The Court also finds that temporary acts of reproduction, on
that multimedia player, of a copyright protected work obtained by streaming on
a website belonging to a third party offering that work without the consent of
the copyright holder, cannot be exempted from the right of reproduction.
Under the directive, an act of reproduction is only exempt
from the right of reproduction if it satisfies five conditions, namely (1) the
act is temporary, (2) it is transient or incidental, (3) it is an integral and
technical part of a technological process, (4) the sole purpose of that process
is 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 does
not have any independent economic significance. Those conditions are cumulative
in the sense that non-compliance with one of them will lead to the act of
reproduction not being exempted. Furthermore, the exemption is to be applied
only in certain special cases which do not impair the normal exploitation of
the work or other subject matter and do not unreasonably prejudice the
legitimate interests of the right holder.
In the present case and having regard, in particular, to the
content of the advertising of the multimedia player and to the fact that the
main attraction of that player for potential purchasers is the pre-installation
of the add-ons concerned, the Court finds that the purchaser of such a player
accesses a free and unauthorised offer of protected works deliberately and in
full knowledge of the circumstances.
Furthermore, acts of temporary reproduction, on the
multimedia player in question, of copyright protected works adversely affects
the normal exploitation of those works and causes unreasonable prejudice to the
legitimate interests of the copyright holders because it usually results in a diminution
of the lawful transactions relating to those protected works.
