The operators of an online platform themselves could be found liable for infringing copyright should they allow the users of such platform to upload and share via the said platform copyright-protected works without the permission of the copyright holders, the Court of Justice of the European Union has recently ruled. The operators of such a platform play an essential role in making such works available to the public and hence cannot escape liability.
EU law makes provisions for the protection of intellectual property rights including copyright. Holders of copyright enjoy the exclusive right to reproduce their work, communicate it to the public or distribute it or otherwise authorise others to do so.
In terms of EU law, member states are obliged to ensure that their national laws provide copyright holders with the exclusive right to authorise or prohibit any communication to the public of their works. This includes making their works available to the public in such a way that members of the public may access them when and where they choose.
The facts of this case which came before the CJEU were briefly as follows. Two internet service providers operated an online sharing platform known as The Pirate Bay. This platform allowed its users to share and upload, in torrents, works present on their computers. The files in question were, for the most part, copyright-protected works for which no consent to share, either to the operators nor to the users of such platform, had been forthcoming from the right holders.
A Netherlands based foundation which safeguards the interests of copyright holders filed proceedings before the national courts seeking a court order which would require the service providers to block the domain names and IP addresses of The Pirate Bay. The national court seized of the case filed a preliminary reference before the CJEU requesting guidance as to whether a sharing platform such as The Pirate Bay ought to be considered as making a ‘communication to the public’ in terms of the EU’s copyright directive.
Primarily, the CJEU asserted that, as a rule, any act by which a user, with full knowledge of the relevant facts, provides its clients with access to protected works is liable to constitute an ‘act of communication’ for legal purposes. It noted that within the context of the case under examination, copyright-protected works were, through The Pirate Bay, being made available to the users of the platform in such a way that they could access such works from wherever and whenever they individually choose.
The court conceded that the works in question were being placed online by the users and not by the platform operators. Nonetheless, the CJEU observed that such operators played an important role in making such works available. It was noted that the operators of the platform indexed the torrent files in such a way that the works to which such files referred could be easily located and downloaded by users.
The platform also offered, in addition to a search engine, categories based on the type of the works, their genre or their popularity. Furthermore, the operators deleted obsolete or faulty torrent files and actively filtered some content.
The court also highlighted the fact that the protected works in question were in actual fact being communicated to a public. A large number of subscribers of the internet service providers downloaded media files using The Pirate Bay and the platform was being used by a significant number of persons.
The operators of The Pirate Bay were aware that their platform provided access to copyright-protected works published without the authorisation of the right holders. In addition, the same operators expressly displayed, on blogs and forums accessible on that platform, their intention of making protected works available to users and encouraged the latter to make copies of those works.
Furthermore, the making available and management of an online sharing platform, such as The Pirate Bay, was carried out with the purpose of obtaining a profit and it was clear from the observations submitted to the court that the platform generated considerable advertising revenue.
The CJEU concluded that, taking into account all of the above facts, making available and managing an online sharing platform such as The Pirate Bay ought to be considered as an act of communication in terms of EU copyright law. The owners of such platform could therefore be found liable for copyright infringement in view of the fact that the copyright holders had not consented to the communication to the public of their works via the said platform.
EU courts have, on more than one occasion, not shied away from ensuring that maximum protection is given to the rights of intellectual property rights holders. Affording such protection is the only way in which enterprises and individuals are encouraged to invest in innovation to the benefit of the public at large.
Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.
mariosa@vellacardona.com