In its ruling of 26 April 2017 in the Filmspeler case (C-527/15), the Court of Justice decided that multimedia players which enable the streaming of copyright-protected works on a television screen without the consent of the right holders, are illegal. The multimedia players contained pre-installed add-ons with hyperlinks to streaming websites on which copyright-protected works had been made available.
Communication to the public
The Court decided that the sale of the multimedia players constituted a “communication to the public” within the meaning of the Infosoc Directive (Directive 2001/29).
First of all, the Court recalled its case-law on hyperlinks and stressed that the notion of “communication” refers to the act of making a work directly accessible to the public. According to the Court, the sale of multimedia players onto which the seller pre-installed, with full knowledge of the consequences of his conduct, add-ons that enabled purchasers to have access to protected works published without consent of the copyright holders, does not qualify as a mere provision of physical facilities. In doing so, the seller offered a direct access to these works whereas it would be difficult for the purchasers to access these works without these add-ons.
Second, the Court confirmed that the protected works were communicated to an indeterminate number of potential recipients involving a large number of persons in the meaning of a communication to the “public”.
Third, as regards whether the works were communicated to a “new” public, the Court answered that (i) the sale of the multimedia player was made in full knowledge of the fact that the add-ons containing hyperlinks pre-installed on that player gave access to works published illegally on the internet and that (ii) the multimedia players were sold with a view to making a profit. The Court therefore concluded that the sale of a multimedia player containing hyperlinks to protected works that were published without consent of the right holders, constitutes a “communication to the public”.
No exception for temporary reproduction
The Court also found that the temporary reproduction on the multimedia player of a copyright protected work obtained by streaming without the consent of the copyright holders, cannot be exempted from the reproduction right.
Under Article 5(1) of the Infosoc Directive, an act of reproduction may be exempted from the reproduction right only if it satisfies five conditions. This includes (i) where the sole purpose of the process is to enable a lawful use of a work and (ii) where the act does not have any independent economic significance.
In the present case, the Court found that the main attraction of the media player for potential purchasers was the pre-installation of the add-ons concerned. It was deliberately and in full knowledge of the circumstances that the purchaser accesses a free and unauthorised offer of protected works. Furthermore, the Court held that the temporary act of reproduction on the multimedia player was such as to adversely affect the normal exploitation of the copyright protected works and caused unreasonable prejudice to the legitimate interests of the right holders.
A favorable judgement for right holders
The Court’s decision is once again good news for copyright holders. It remains to be seen whether the Court will continue on this path. Next in line is probably the Court’s ruling in the Ziggo case, relating to the liability of peer-to-peer file sharing websites such as The Pirate Bay (case C-610/15).