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Online copyright: "communication to the public" right is being redefined

According to a recent YouGov study, it is estimated that 10% of the UK population are now using pirated TV streaming services, but a landmark ruling by the Court of Justice of the European Union ("CJEU") has now provided copyright owners with a powerful ruling against infringers in the recent case of Stichting Brein v. Jack Frederik Wullems (C-527/15).

Background

Central to this case is the communication right (Article 3(1) of the Copyright Directive which provides an author an exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

This case concerned Jack Frederik Wullems (trading under the name of "Filmspeler") in respect of his sale of a multimedia player pre-loaded with certain add-ons.  These add-ons, when connected to the internet and a TV screen, enabled users to access and stream content from third party websites, some of which streamed unauthorised films, television series and sporting events. Stichting Brein (a Dutch copyright foundation) claimed against FIlmspeler and sought an injunction preventing him from selling the devices. The Dutch Supreme Court sought guidance from the CJEU.

The device was advertised as making it possible to, easily and without cost, watch audiovisual material on a television screen without the copyright holder's consent.  An example of the advertising text used is "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!"

The CJEU had two primary issues to consider: (1) whether the sale of the 'Filmspeler' device infringed the communication right (Article 3(1) of the Copyright Directive); and (2) whether individuals who use the 'Filmspeler' device to stream illegal content would avoid liability for copyright infringement because of the temporary copies exception (Article 5 of the Copyright Directive).

The decision in relation to infringement of the communication right

A broad interpretation of the concept of 'communication to the public' was the approach taken by the CJEU following previous case law which has interpreted the Directive as being intended to provide a high level of protection for authors. 

The CJEU has previously held that the provision on a website of clickable links to protected works published without any access restrictions on another site affords users of the first site direct access to those works (GS Media BV v Sanoma Media Netherlands BV C-160/15 (see Svensson and GS Media) This constitutes an act of communication, irrespective of whether those users avail themselves of that opportunity.

Filmspeler argued that the device simply made it easier to gain access to unauthorised content and that it did not, itself, make available the works to the public.  This argument was rejected.

In applying the key principles established in earlier cases, the CJEU found that the sale of the Filmspeler device did constitute a 'communication to the public': As a direct result of Filmspeler's intentional 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, therefore going beyond the mere provision of physical facilities.

According to the AG there is no significant difference between placing a hyperlink on a website (as in GS Media) and placing a hyperlink on a media player using pre-installed add-ons. Both acts provide links to protected infringing content.

The decision in relation to the temporary copies exception

When content is streamed using the 'Filmspeler' device, temporary copies of that streamed content are created.

Temporary copies of streamed content stored on a computer are excepted from infringement providing they satisfy certain conditions.  The CJEU considered that the relevant condition that such copies failed was the requirement that the acts 'have the sole purpose of enabling a lawful use of work'.  Given that the main attractions of the Filmspeler devices were the pre-installed add-ons, the CJEU considered that 'the purchaser of such a player accesses a free and unauthorised offer of protected works deliberately and in full knowledge of the circumstances".  and the purchasers of the device but in this case the CJEU considered that the that streaming is not a "lawful use" and that providing users with free and unauthorised access to copyrighted works does not satisfy the conditions that need to be satisfied for the defence to apply.

It also found that the temporary copies of protected works adversely affected the normal exploitation of those work and causes unreasonable prejudice to the legitimate interests of the copyright holder. 

What are the commercial implications?

This case widens the primary infringement net and captures not just users of protected works but also those who enable access to a protected work. 

Commercially, it is reported that the ruling has already started to impact the sale of some Kodi boxes (ie a set top device that attaches to a TV and allows access to the open source Kodi media streaming software).  Both Amazon and eBay are reported to have issued warnings to sellers that their accounts face restrictions or termination if they are found to be selling fully loaded media players (ie those with pre-installed add-ons enabling illegal streaming.

It is also interesting to note that the ruling came around the time of a further related deterrent with the introduction of the Digital Economy Bill which provides that people streaming films using torrents on line will be committing a criminal offence, punishable by up to 10 years imprisonment.

Conclusion

This ruling certainly looks to strengthen a right holders armoury against the perpetuation of illegally streamed content but it is interesting to note that the CJEU made reference to the intentional intervention by Filmspeler. This may well act as an important limitation on those caught in the wider net.

On a final point, rights owners also now have a potential claim of infringement against viewers which may assist to limit the market for devices that assist with illegal streaming. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2017. Specific advice should be sought for specific cases. For more information see our terms & conditions.

 

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