Intellectual property owners have been hard hit by the online world. With its continuing evolution that allows copying, streaming and broadcasting without the necessity of involving right holders, the creative industries have been battling this phenomenon ever since.
The Court of Justice of the European Union (CJEU) has been tasked with considering whether acts of third parties amount to a communication to the public in breach of EU law if performed without the right holders’ consent.
In its recent rulings, the CJEU made it clear that online streaming by third parties of live television broadcasts is, with limited exceptions, contrary to EU law. It also 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 in breach of EU law. Its latest ruling in a long line of such decisions expands the scope of copyright infringement to sellers of multimedia players.
The case arose over the sale of models of a multimedia player by a certain Jack Wullems. This device acted as a medium between the internet and a television screen. The device was pre-installed with software and add-ons that enabled files to be played through a user-friendly menu.
Essentially, such software allowed the purchaser to access streaming content online and viewed on a TV. The multimedia player did not differentiate between content made available with the consent of the right holders or otherwise. Wullems was advertising the player as a device allowing the user to watch, on a TV screen, audiovisual material available on the internet such as movies and TV series easily and for free without the consent of the copyright holders.
Wullems was faced with an action brought forward by a foundation set up in the Netherlands to protect the interests of copyright holders. The action was intended to bar Wullems from selling multimedia players that enabled users to access internet streaming platforms from their TV sets.
The Dutch foundation, on behalf of the right holders, condemned the sale of such devices, arguing that these facilitated a communication to the public without the right holders’ consent, in breach of the Dutch law on copyright that transposed the EU InfoSoc Directive. The latter imposes an obligation on member states of the EU to provide right holders with the exclusive right to authorise or prohibit any communication to the public of their works.
The District Court in the Netherlands decided to refer the matter to the Luxembourg court for guidance.
In a landmark judgment, the CJEU established that the sale of multimedia players, which enable films that are available illegally on the internet to be viewed on a TV screen, would constitute an infringement of copyright.
This conclusion was reached after the court determined that a multimedia player such as the one sold by Wullems was not just a physical device for enabling or making a communication. Such device, stocked with software and add-ons, enabled the user to access copyrighted works via streaming, and allowed a direct link to be established between the illegal websites and the purchasers of the device. The court held that if these devices were not configured to allow users to stream movies and TV shows, it would have been significantly difficult for a user to find the infringing content.
The court therefore held that the sale of this type of multimedia player makes a communication to the public – in breach of EU law. In coming to its decision, the court was guided by the aim of the InfoSoc Directive which, in the court’s view, is to establish a high level of protection for authors and therefore necessitates a wide interpretation of the principles established by the directive. The court also observed that the multimedia player made temporary acts of reproduction of copyright protected work while operating. Wullems argued that such acts of reproduction were exempted by the InfoSoc Directive from the right of reproduction held by right holders. The CJEU, however, determined that such acts of reproduction require the prior consent of the right holder since they adversely affect the normal exploitation of right holders’ works.
The court’s ruling represents an important step for copyright holders in their battle against breaches of their rights. In finding against the device provider, the CJEU has widened the interpretation of the law by making the sale of the devices a direct infringement of copyright, thereby opening up potential new avenues of enforcement for right holders.
Josette Grech is adviser on EU law at Guido de Marco & Associates.
jgrech@demarcoassociates.com