Unlawful streaming is as infringing as unlawful downloads - Further guidance from the CJEU on "communication to the public"

The CJEU has issued its ruling in Filmspeler that the sale of a multimedia player specifically configured to link to websites on which protected works are made available to internet users, without the consent of the copyright holders, is a ‘communication to the public’ within the meaning of the InfoSoc Directive, and hence an actionable infringement.

This decision follows a number of CJEU decisions in which the meaning of 'communication to the public' has been discussed and broadens the potential group of defendants who might now be regarded a primarily liable for unauthorised acts of 'communication to the public' to those who sell piracy-enabled set-top boxes, such as those supplied with software like the neutral Kodi streaming platform, to which add-ons have been installed, designed to receive protected works (such as films, TV shows or live sports) that are made available to internet users without the consent of the copyright holders, with minimal input from the end user.

1. Business Impact

2. The Decision

3. Brexit

1. Business Impact

• This decision considers not just what amounts to an act of communication to the public, but also who makes an act of communication to the public.
• In this case, the CJEU rules that the providers of multimedia players with pre-installed hyperlinks to websites that, without the authorisation of the copyright holder, offer unrestricted access to copyright-protected works, are liable for unauthorised acts of 'communication to the public'.
• Further, the CJEU ruled that the temporary reproduction on a multimedia player of a copyright-protected work obtained by streaming is not exempt from the right of reproduction.
• This decision puts unlawful streaming of content in the same position as unlawful downloads.

2. The Decision

Stichting Brein v Wullems, acting under the name of Filmspeler (Case C-527/15) concerned the sale of a multimedia player that made it possible through a user-friendly interface, via structured menus, to watch on a television screen copyright material available on the internet without the consent of the copyright holders.

Communication to the public

In its judgment, the CJEU held that the sale of such a multimedia player is a ‘communication to the public’, within the meaning of the InfoSoc Directive.

The CJEU emphasised that the objective of the InfoSoc Directive is to establish a high level of protection for authors, allowing them to obtain an appropriate reward for the use of their works. The concept of ‘communication to the public’ must therefore be interpreted broadly.

The CJEU noted that it 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. This constitutes an act of communication, irrespective of whether those users avail themselves of that opportunity.

This is also the case for the sale of a multimedia player such as the one in issue here. This was not the ‘mere’ provision of physical facilities for enabling or making a communication (which is outside the scope of Article 3(1) of the InfoSoc Directive). The add-ons were pre-installed, with full knowledge of the consequences of that conduct, so as to specifically enable purchasers to access protected works published, without the consent of the copyright holders of those works, on streaming websites and to enable those purchasers to watch those works on their television. That enabling intervention, without which the purchasers would find it difficult to benefit from those protected works, is quite different from the mere provision of physical facilities.

That fairly large numbers of people have bought these players was taken by the CJEU to mean that there are an 'indeterminate number of potential recipients' involving a large number of persons (ie. the public). On the crucial question of whether the copyright works were transmitted to a 'new public', the CJEU found that the audience for these devices was not something taken into account by the copyright holders when they first gave permission for their works to be distributed.

Referencing its earlier decision in GS Media (Case C‑160/15), the CJEU placed emphasis on whether links were offered in the knowledge they were infringing and whether the subsequent communication to the public had a profit element.

In this case, it is common ground that 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; its advertising specifically stated that it made it possible to watch on a television screen, freely and easily, audiovisual material available on the internet without the consent of the copyright holders.

In addition, It could not be disputed that the multimedia player was supplied 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.

Therefore, the CJEU found it necessary to hold that the sale of such a multimedia player constitutes a ‘communication to the public’, within the meaning of Article 3(1) of the InfoSoc Directive.

Temporary acts of reproduction

The CJEU also provides further clarity on the status of content streamed on the internet without copyright holders’ permission.

Under Article 5(1) of the InfoSoc Directive, reproduction of content may only be exempt from reproduction rights if it satisfies five conditions:

• the act is temporary;
• it is transient or incidental;
• it is an integral and essential part of a technological process;
• 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 protected subject matter; and
• that act has no independent economic significance.

In this case, having regard to the content of the advertising of the multimedia player and the fact that the main attraction of that player for potential purchasers is the pre-installation of the add-ons concerned, the above conditions are not satisfied and no copyright exception is therefore available.

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3. Brexit

Post-Brexit, although UK copyright law would be free to develop independently of the rest of the EU, there will be strong commercial drivers for the UK to maintain close harmonisation of copyright law, especially around digital content, interoperability and enforcement.

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