(May 2, 2017) On April 26, 2017, the European Court of Justice (ECJ) held that the sale of a multimedia player that enables protected works available illegally on the Internet to be viewed easily and for free on a TV screen could constitute an infringement of copyright. The sale of such a player is a “communication to the public” within the meaning of the EU InfoSoc Directive, the Court ruled.  (Case C‑527/15, Stichting Brein v. Jack Frederik Wullems (Filmspeler) (Apr. 26, 2017), EUR-LEX; Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society (InfoSoc Directive), 2001 O.J. (L 167) 10, EUR-LEX.)

Facts of the Case

The defendant in the case, Jack Frederik Wullems, sells various models of a multimedia player called “filmspeler” that can be connected to the Internet and TVs. (Case 527/15, supra, at 15.)  The player comes with pre-installed open source software and add-ons that enable the buyer, inter alia, to access streaming content online that can then be viewed on a TV.  The software does not differentiate between content made available with or without the consent of the copyright holder.  (Id. at 16 & 17.)  The advertisements for the multimedia player particularly highlight the possibility of viewing protected content available on the Internet easily and for free on a TV.  (Id. at 18.)

The plaintiff, Stichting Brein, is a Netherlands foundation for the protection of the interests of copyright holders. (Id. at 14.)  On July 1, 2014, the plaintiff brought an action against the defendant to order him to stop selling the multimedia player.  It submitted that by marketing the “filmspeler,” Wullems made a “communication to the public” in breach of the Dutch law on copyright that implemented the EU InfoSoc Directive.  (Id. at 19 & 20.)  The Dutch court referred the case to the ECJ for a preliminary ruling and asked whether there is a “communication to the public” in circumstances such as those at issue and whether the temporary act of reproduction on the multimedia player is covered by the exemption to the right of reproduction.  (Id. at 22.)

The Ruling: Communication to the Public

Article 3, paragraph 1, of the InfoSoc Directive does not define the concept of “communication to the public.”  It states,

Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them. (InfoSoc Directive, supra.)

The ECJ recalled that the meaning and scope of “communication to the public” must be determined in light of the objectives pursued by the Directive and the context in which the provision being interpreted is set. (Id. at 26.)  The ECJ stated that the aim of the Directive is to “establish a high level of protection for authors,” which necessitates a broad interpretation of the concept of “communication to the public.”  (Id. at 27.)

In its ruling, the Court pointed out the essential role played by the user who makes an act of communication. (Id. at 31.)  It added that the concept of the “public” refers to an “indeterminate number of potential viewers and implies, moreover, a fairly large number of people.”  (Id. at 32.)  According to the ECJ’s case law, in order to qualify as a “communication to the public,” a protected work must be communicated using specific technical means different from those previously used or be communicated to a “new public” that was not initially taken into account by the copyright holders.  (Id. at 33.)  In addition, according to case law, it is relevant whether the communication is made with a view to profit making.  (Id. at 34.)

The Court recalled its earlier rulings in which it 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. (Id. at 37; C‑466/12, Svensson and Others v. Retriever Sverige AB, at 18, CURIA; C‑348/13, BestWater International GmbH v. Michael Mebes, Stefan Potsch, at 15, CURIA (available only in French and German); C‑160/15, GS Media BV v. Sanoma Media Netherlands BV and Others, at 43, CURIA.) It concluded that the same considerations applied to the case at issue.  (Case C‑527/15, supra, at 38.)  The sale of the multimedia player in question was not merely a “provision of physical facilities for enabling or making a communication,” as referred to in recital 27 of the EU InfoSoc Directive.  (Id. at 41.)  The Court noted that illegal streaming websites are generally not readily identifiable and change frequently.  The defendant’s pre-installed software and add-ons enabled the public to access copyright protected work available on these streaming websites and view them on their TVs.  (Id.)

Furthermore, the Court stated, the works are also communicated to the “public,” because the communication is aimed at an indeterminate number of potential recipients and involves a large number of persons.  The player has been purchased by a fairly large number of people and the communication at issue covers all persons who could potentially purchase that multimedia player and have an Internet connection.  (Id. at 45.)  The defendant was fully aware, in the Court’s view, that the pre-installed software and add-ons provided access to content published illegally on the Internet as that feature was used to market the player.  (Id. at 50.)  The ECJ added that the defendant supplied the player with a view to making a profit, because the price is paid to obtain direct access to protected content made available on these streaming websites without the consent of the copyright holder.  (Id. at 51.)

The Ruling: Exemption from the Right of Reproduction

On the question of whether the temporary acts of reproduction on the multimedia player can be exempted from the right of reproduction, the Court held that they could not be exempted, because they were not a lawful use of the work. (Id. at 71.)  According to article 5, paragraph 1, of the EU InfoSoc Directive, an act of reproduction may be exempted if it satisfies the following five cumulative criteria:

• 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 does not have any independent economic significance. (InfoSoc Directive, supra.)

The Court stated that in the case at issue, the main attraction of the player was its ability to access for free protected works available illegally on streaming websites, a feature that was also used to market the player. It held that the purchaser therefore “deliberately and in full knowledge of the circumstances … accesses a free and unauthorised offer of protected works.” (Case 527/15, supra, at 69.)  Furthermore, the ECJ pointed out that the temporary reproduction of copyright-protected works on players such as the one in question “adversely affect[s] the normal exploitation of those works and causes unreasonable prejudice to the legitimate interests of the right holder,” because it usually results in a decrease of lawful transactions related to the protected works.  (Id. at 70.)

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