Multimedia players and copyright – an EU Advocate General’s opinion

windows-media-player-icon-66464The Advocate General of ECJ CAMPOS SÁNCHEZ-BORDONA issued his opinion on Case C‑527/15 Stichting Brein v Jack Frederik Wullems, acting under the name of Filmspeler.

This case concerns the following:

Stichting Brein is a foundation involved in the protection of copyright and other related rights. Its patrons include associations of producers and importers of image and sound carriers, film producers, film distributors, multimedia producers and publishers.

Jack Frederik Wullems offered to the public, through various websites (including his own, http://www.filmspeler.nl), various models of a multimedia player under the name ‘filmspeler’. The device acted as an instrument for connecting a source of image and/or sound signals to a television screen. The differences between the models are of a technical nature but their operation is essentially the same: if the multimedia player is connected to the internet, on the one hand, and to a user’s screen (for example, a television screen), on the other, the user is able to stream the image and the sound from a web portal or website.

The hardware for the mediaplayer can be bought from various suppliers. Mr Wullems installed on his devices the open source software XBMC, which makes it possible to open files through a user-friendly graphic user interface via menu structures and which can be used by anyone. He also installed add-ons, separate software files created by third parties and freely available on the internet, which he integrated into the XBMC software user interface.

Those add-ons contain hyperlinks which, if clicked, redirect the user to streaming websites, controlled by third parties, on which films, television series and (live) sporting events can be enjoyed free of charge, with or without the authorisation of the right holders. The digital content starts playing automatically when the relevant hyperlink is clicked.

In fourteen of the add-ons the links led to films, series and (live) sporting events without the authorisation of the holders of the reproduction rights. Others, however, linked to streaming websites whose digital content had been authorised by the right holders.

Mr Wullems had no influence over the add-ons, nor did he alter them, and the user too can install the add-ons on his mediaplayer. On his portal (www.filmspeler.nl) and on other third-party sites, Mr Wullems advertised his products by means of the following promotional slogans:

‘-  Never again pay for films, series, sport, directly available without advertisements and waiting time. (no subscription fees, plug and play) Netflix is now past tense!

–  Want to watch free films, series, sport without having to pay? Who doesn’t?!

–  Never have to go to the cinema again thanks to our optimised XBMC software. Free HD films and series, including films recently shown in cinemas, thanks to XBMC.’

On 22 May 2014, Stichting Brein called on Mr Wullems to stop selling the mediaplayers. On 1 July 2014, Stichting Brein commenced proceedings against Mr Wullems before the referring court, seeking an injunction prohibiting Mr Wullems from selling the devices and from offering the hyperlinks which provided users with unlawful access to copyright-protected works.

The applicant claimed, in support of the form of order sought, that through the sale of the filmspeler player, Mr Wullems was carrying out a ‘communication to the public’ contrary to Articles 1 and 12 of the Auteurswet (Netherlands Law on copyright) and Articles 2, 6, 7a and 8 of the Wet op de Naburige Rechten (Law on related rights).

The Rechtbank Midden-Nederland (District Court, Central Netherlands) takes the view that the provisions of national law relied upon in the proceedings must be interpreted in the light of Article 3 of Directive 2001/29, transposed into Netherlands law by those provisions. Since the parties to the main proceedings disagree about whether the sale of Mr Wullems’ multimedia player is intended to reach a ‘new public’ within the meaning of the case-law of the Court of Justice, the referring court considers that neither the judgment in Svensson and Others nor the order in BestWater International provides criteria sufficient for reaching a decision on that disagreement. Therefore, in the referring court’s view, reasonable doubt remains as to whether or not there is a communication to the public if the work has been previously published but without the right holder’s authorisation.

In the second place, the referring court is faced with the argument put forward by Mr Wullems, who contends that the streaming of copyright-protected works from an unlawful source comes within the exception in Article 13(a) of the Netherlands Law on copyright. As that provision must be interpreted in accordance with Article 5(1) of Directive 2001/29, the referring court observes that the Court has yet to rule on the meaning of the requirement of ‘lawful use’ laid down in Article 5 of the directive.

In those circumstances, the Rechtbank Midden-Nederland (District Court, Central Netherlands) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1)  Must Article 3(1) of the Copyright Directive be interpreted as meaning that there is “a communication to the public” within the meaning of that provision, when someone sells a product (mediaplayer) in which he has installed add-ons containing hyperlinks to websites on which copyright-protected works, such as films, series and live broadcasts are made directly accessible, without the authorisation of the right holders?

2)  Does it make any difference:

–  whether the copyright-protected works as a whole have not previously been published on the internet or have been published only through subscriptions with the authorisation of the right holder?

– whether the add-ons containing hyperlinks to websites on which copyright-protected works are made directly accessible without the authorisation of the right holders are freely available and can also be installed in the mediaplayer by the users themselves?

–  whether the websites and thus the copyright-protected works made accessible thereon — without the authorisation of the right holders — can also be accessed by the public without the mediaplayer?

3) Should Article 5 of the Copyright Directive (Directive 2001/29/EC) be interpreted as meaning that there is no “lawful use” within the meaning of Article 5(1)(b) of that Directive if a temporary reproduction is made by an end user during the streaming of a copyright-protected work from a third-party website where that copyright-protected work is offered without the authorisation of the right holder(s)?

4) If the answer to the third question is in the negative, is the making of a temporary reproduction by an end user during the streaming of a copyright-protected work from a website where that copyright-protected work is offered without the authorisation of the right holder(s) then contrary to the “three-step test” referred to in Article 5(5) of the Copyright Directive (Directive 2001/29/EC)?’

The Advocate General’s opinion:

‘The sale of a multimedia player of the kind at issue in the main proceedings, in which the seller has installed hyperlinks to websites that, without the authorisation of the copyright holder, offer unrestricted access to copyright-protected works, such as films, series and live programmes,

–   constitutes “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 of certain aspects of copyright and related rights in the information society; and

–  cannot be covered by the exception laid down in Article 5(1) of Directive 2001/29, inasmuch as it does not fall within the definition of “lawful use” in subparagraph b) of that provision and, in any case, does not fulfil the conditions for application of Article 5(5) of that directive.’

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