Mark Owen, Adam Rendle and Maarten Rijks review the recent judgment and focus on the way in which the case continues the CJEU's expansion of communication to the public
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 Svenssonand 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 decisions soften 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 infringers, 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.
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:
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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.
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 is 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.
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.