Stichting Brein v Wullems t/a
filmspeler C-527/15 (click here
for the full judgment) is a decision which continues the Court of Justice of
the European Union’s much criticised approach to communication to the public
but the decision provides copyright owners with a powerful right to use against
defendants who do not originate infringing sources of content.
The CJEU found that a media player marketed and sold with pre-installed
add-ons giving access to knowingly infringing sources of TV and film content
infringes the communication to the public right. The decision continues the
expansion of the communication to the public right following the CJEU’s seminal decisions in Svensson and GS
Media. The
sale of media players, which are separate from and do not originate the actual
transmission of an infringing work, can itself infringe the communication to
the public right.
The expansion comes because the decision softens what is
required to show that an intervener in someone else’s communication has played
an ‘indispensable role’ in giving access to infringing content. When trying to
work out whether such an intervener infringes, the CJEU would
not look at whether the access would be impossible without the intervention.
Instead, the key is to assess whether the role played by the service provider
was ‘essential’. In other words, whether the intervener goes beyond the mere
provision of physical facilities by providing access to infringing content
through enabling a direct link to that content, without which it would have
been difficult to find the content.
The facts
Unlike the Svensson and GS
Media cases,
the Filmspeler case
did not involve hyperlinks posted on a website but concerned the sale of media
players containing pre-installed add-ons that contained hyperlinks to legally
and illegally posted online content on third-party websites.
Using these add-ons, users could watch streaming websites on
their TVs and watch movies, series and live sports broadcasts that were made
available without authorisation.
The filmspeler service was offered using the following
advertising:
Never again pay for
films, series, sport, directly available without advertisements and waiting
time (no subscription fees, plug and play). Netflix is now past tense!
Want to watch free films, series, sport without having to pay? Who doesn’t?!
Never have to go to the cinema again thanks to our optimised XBMC software.
Free HD films and series, including films recently shown in cinemas, thanks to XBMC.
Legal background
The communication to the public right has been the subject of
numerous complex decisions spanning over ten years but in recent times the
focus has been on hyperlinking. For there to be an infringement of that right
there needs to be a communication (and merely the making available of a work is
enough; there does not have to be an actual transmission of a work) and the
communication needs to be to the public.
In GS
Media the CJEU identified
three complementary and interdependent criteria to be applied when assessing
whether there is a communication to the public.
1.
First is an ‘intervention’ by the
defendant, in full knowledge of the consequences of its action, to give access
to a protected work to customers. This is in particular where, in the absence
of that intervention, customers would not be able to enjoy the broadcast work.
The CJEU also emphasised the ‘indispensable’
role played by the user and the ‘deliberate’ nature of the intervention.
2.
Second is that ‘the public’ refers to
‘an indeterminate number of potential viewers and implies, moreover, a fairly
large number of people’. Either there needs to be a communication by a
different technical means from those previously used, or a communication to a
new public not taken into account when authorising the initial communication.
3.
Third, it is relevant that the
communication is of a profit-making nature.
We know from the Svensson case that linking to a work which is freely
available elsewhere on the internet is a communication but is not a
communication to the public,
because there is no new public not taken into account when the work was made
freely available.
We also know from the GS
Media case
that a hyperlinker infringes copyright by linking to a work that was placed
online without the consent of the copyright owner if the hyperlinker was aware,
or should have been aware, of the fact that the linked-to content was
unauthorised. There is a rebuttable presumption that the person posting the
link at least had knowledge of the unauthorised nature of the content in
circumstances where the hyperlink was posted for ‘financial gain’.
The filmspeler service involved the provision of hyperlinks but
in a more indirect way than the defendants in Svensson and GS Media.
The question for the CJEU,
therefore, 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 or not the
temporary copies made on the player when TV and film content is streamed
through it can benefit from the temporary copies defence in the Copyright
Directive. This was the first time the CJEU has had to consider this question head-on.
The decision on communication to the public
Following the decisions in Svensson and GS
Media, the sale of the filmspeler player did constitute a
communication to the public. In full knowledge of the consequences of the
defendant’s conduct, the installation of the add-ons made it possible for users
to access and watch copyright works. The service’s intervention enabled a
direct link to be established between websites broadcasting infringing works
and its users, without which the users would have found it difficult to view
the works. As a direct result of the service’s intervention, the users could
make a direct and easy connection through structured menus to websites
illegally streaming copyright works when such connection was otherwise very hard
to make. That went beyond the mere provision of physical facilities. It was
particularly relevant that the sources of the content were not readily
identifiable without the use of the player and a majority of them changed
frequently.
There was a communication to the public because
it covered anyone who could potentially acquire the player and has an internet
connection. That was an indeterminate, large number of potential recipients.
This was a new public because the defendant knew that the targeted public was
not taken into account by the copyright holders when they authorised the
initial communication because he knew that the works had been published
illegally on the internet.
The player was supplied with a view to making a profit; the
price was paid to obtain direct access to infringing works available on the
linked-to sites.
The decision on the temporary copies defence
The temporary copies on the player created when users stream
content through it did not benefit from the defence.
The CJEU focussed
on whether the aim of the service was to enable a use of works that is not
restricted by the applicable legislation or, in other words, whether the acts
involved have the sole purpose of enabling a lawful use of a work. This was not
the case because the main attraction of the service was to provide its users
with free and unauthorised access to copyright works. The service was provided
deliberately and in full knowledge of the circumstances of the access that was
being provided. In addition, the three-step test was not complied with because
the copies of works made on the player usually resulted in a reduction of
lawful transactions relating to those works. The CJEU appears
to be saying that, if the service from which the temporary copies are derived
is unlawful, then those copies would be unlawful as well.
Commentary
The decision confirms that the communication to the public right
is very powerful and sufficiently flexible to be applied in a variety of
different contexts. The defendant in Filmspelerwas not doing any ‘transmission’ of the
works at all; instead he was essentially selling a physical product which gave
access to unlawful transmissions by third parties.
The decision re-emphasises that the ‘indispensable role played
by the user’ constitutes a low standard of necessity. The filmspeler service
enabled access to infringing works; that access was not impossible without
the service’s enablement but was made easier by the service. This demonstrates
that a range of actors other than the person initially responsible for making
available or transmitting the work can be found to play an indispensable role
and therefore carry out a communication to the public.
That the service’s intervention was carried out in ‘full
knowledge’ demonstrates that there is an important limitation on which actors
in a chain of communication will be communicating to the public. Given the
service’s marketing and nature, it was clear that there was knowledge that the
intervention was enabling access to infringing content and that this knowledge
was of specific infringements. How high a bar this knowledge requirement is,
and whether aspects of constructive or ‘should have’ knowledge will be
introduced, will go a long way to determine how powerful the communication to
the public right is against the non-primary actors in a chain of communication.
The decision on temporary copies is a very significant
development for rights owners, as it creates an infringement at the reception
of infringing streamed content, by the viewer, as well as at its source. It
makes it easier to identify an infringement within the jurisdiction for right
holders seeking a website blocking injunction or similar under Article 8(3) of
the Copyright Directive. It also means, for the purposes of UK law, that the
providers of the unlawful streaming service could be authorising those end-user
infringements. The CJEU’s
reliance on the three-step test also helps clarify what role it has to play
when applying exceptions; it appears that it is a standalone test which should
be applied by courts in addition to the test set out in the relevant exception.
Brexit and the future
The position of the UK government’s White Paper launching the
Great Repeal Bill is that all CJEU decisions, including this one, made prior
to the date of Brexit will be ‘converted’ into UK Supreme Court authority.
Given the limited circumstances in which Supreme Court decisions can be
overturned, the effect will be that UK copyright law post-Brexit, insofar as it
is based on case law, will continue to look very similar to EU law for a long
time to come. Divergence may, however, come in how the CJEU’s fact-dependent and context-specific
criteria are applied in a particular case.
The next instalment in the continuing saga of the communication
to the public right will come in summer 2017 when the CJEU rules
on the same claimant’s application to require Dutch ISPs to block access to the Pirate Bay (Stichting
Brein v Ziggo BV C-610/15).
The Advocate General has already opined that the Pirate Bay would 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, given it would be
much more complex and inefficient to access infringing works without the
service. The Advocate General therefore proposed an interpretation of the ‘indispensability’
requirement which is similar to the low level of dependence seen in the GS Media and Filmspeler cases but
seemed to require specific knowledge of a specific infringing work. Whether the CJEU picks
up on and/or softens the Advocate General’s views on the indispensability and
knowledge parts of the GS
Media decision
will go a long way to determine how far the communication to the public right
can be used to find other ‘intermediaries’ primarily liable for copyright
infringement in the EU.
Mark Owen is head of the
UK Technology, Media and Communications group and the IP & Media practice
at Taylor Wessing LLP.
Adam Rendle is a senior
associate in the IP/IT group at Taylor Wessing, specialising in Trade
Marks, Copyright and Media.
Maarten Rijks is of counsel
at Taylor Wessing LLP and a member of the IP/IT practice group. He is
based at the firm’s Eindhoven office.
