The Advocate General of the European court SZPUNAR issued an opinion in case C‑610/15 Stichting Brein v Ziggo BV, XS4ALL Internet BV. This case concerns the following:
The applicant in the main proceedings, Stichting Brein, is a foundation governed by Netherlands Law, whose main purpose is to combat the illegal exploitation of subject matter protected by copyright and related rights, and to protect in that area the interests of the holders of those rights.
The defendants in the main proceedings, Ziggo BV and XS4ALL Internet BV (‘XS4ALL’), are companies governed by Netherlands law whose activity consists, inter alia, in providing consumers with an internet service. According to the information contained in Stichting Brein’s written observations, they are the two main internet service providers on the Netherlands market.
Stichting Brein has applied, under the provisions of Netherlands law transposing Article 8(3) of Directive 2001/29, (9) for an order that Ziggo and XS4ALL block access by recipients of their services to the internet addresses of the website of TPB, an engine for peer-to-peer file-sharing. That application is based on the fact that it is by means of that file-sharing engine that recipients of the services of the defendants in the main proceedings, using those services, commit large-scale copyright infringements, by sharing files containing protected subject matter (mainly music and films) without the authorisation of the copyright holders.
That application, upheld at first instance, was dismissed on appeal, essentially on the grounds, first, that it is the recipients of the services of the defendants in the main proceedings, and not TPB, which are the originators of the copyright infringements and, secondly, that the blocking sought is not proportionate to the aim pursued, namely the effective protection of copyrights. Stichting Brein appealed on a point of law against the latter decision before the referring court.
It was in those circumstances that the Hoge Raad der Nederlanden (Netherlands Supreme Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. Is there a communication to the public within the meaning of Article 3(1) of Directive 2001/29 by the operator of a website, if no protected works are available on that website, but a system exists … by means of which metadata on protected works which is present on the users’ computers is indexed and categorised for users, so that the users can trace and upload and download the protected works on the basis thereof?
2. If the answer to Question 1 is negative:
Do Article 8(3) of Directive 2001/29 and Article 11 of Directive 2004/48 offer any scope for obtaining an injunction against an intermediary as referred to in those provisions, if that intermediary facilitates the infringing acts of third parties in the way referred to in Question 1?’
The Advocate’s opinion:
The fact that the operator of a website makes it possible, by indexing and providing a search engine, to find files containing works protected by copyright which are offered for sharing on a peer-to-peer network constitutes a communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation certain aspects of copyright and related rights in the information society, if that operator was aware of the fact that a work was made available on the network without the consent of the copyright holders and did not take action in order to make access to that work impossible.