Streaming devices – an EU Court decision

streammingThe European court ruled in case C‑527/15, Stichting Brein v Jack Frederik Wullems. This case concerns the following subject matter:

Stichting Brein is a Netherlands foundation for the protection of the interests of copyright holders.

Mr Wullems sells, on a number of internet sites, including his own site http://www.filmspeler.nl, various models of a multimedia player. That player, sold under the name ‘filmspeler’, is a device which acts as a medium between, on the one hand, a source of visual and/or sound data and, on the other hand, a television screen.

On that player, Mr Wullems installed an open source software, which makes it possible to play files through a user-friendly interface via structured menus, and integrated into it, without alteration, add-ons available on the internet, created by third parties, some of which specifically link to websites on which protected works are made available to internet users without the consent of the copyright holders.

Those add-ons contain links which, when they are activated by the remote control of the multimedia player, connect to streaming websites operated by third parties, some of which give access to digital content with the authorisation of the copyright holders, whilst others give access to such content without their consent. In particular, the add-ons’ function is to retrieve the desired content from streaming websites and make it start playing, with a simple click, on the multimedia player sold by Mr Wullems connected to a television screen.

As is clear from the order for reference, Mr Wullems advertised the ‘filmspeler’ multimedia player, stating that it made it possible, in particular, to watch on a television screen, freely and easily, audiovisual material available on the internet without the consent of the copyright holders.

On 22 May 2014 Stichting Brein asked Mr Wullems to stop selling the multimedia player. On 1 July 2014, it brought an action against Mr Wullems before the referring court seeking an order that, in essence, he stop selling multimedia players such as ‘filmspeler’ and offering hyperlinks that give users illegal access to protected works.

Before the referring court, Stichting Brein submitted that, by marketing the ‘filmspeler’ multimedia player, Mr Wullems made a ‘communication to the public’, in breach of Articles 1 and 12 of the Law on copyright and Articles 2, 6, 7a and 8 of the Law on neighbouring rights. Those provisions must, it submitted, be interpreted in the light of Article 3 of Directive 2001/29, which they transpose into the Netherlands law. The referring court considers, in that regard, that the case-law of the Court does not make it possible to answer with certainty the question of whether there is a communication to the public in circumstances such as those at issue in the main proceedings.

In addition, before the referring court, Mr Wullems submitted that streaming broadcasts of works protected by copyright from an illegal source was covered by the exception listed in Article 13a of the Law on copyright, which must be interpreted in the light of Article 5(1) of Directive 2001/29, which it transposes into Netherlands law. According to the referring court, the Court has not yet given a ruling on the meaning of the requirement of a ‘lawful use’ within the meaning of Article 5(1)(b) of Directive 2001/29.

In those circumstances, the Rechtbank Midden-Nederland (District Court, Midden-Nederland, 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 Directive 2001/29 be interpreted as meaning that there is “a communication to the public” within the meaning of that provision, when someone sells a product (multimedia player) 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 only been published 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 multimedia player 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 multimedia player?

(3) Should Article 5 of Directive 2001/29 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 Directive 2001/29?’

The Court’s decision:

1.      The concept of ‘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, must be interpreted as covering the sale of a multimedia player, such as that at issue in the main proceedings, on which there are pre-installed add-ons, available on the internet, containing hyperlinks to websites — that are freely accessible to the public — on which copyright-protected works have been made available to the public without the consent of the right holders.

2.      Article 5(1) and (5) of Directive 2001/29 must be interpreted as meaning that acts of temporary reproduction, on a multimedia player, such as that at issue in the main proceedings, of a copyright-protected work obtained by streaming from a website belonging to a third party offering that work without the consent of the copyright holder does not satisfy the conditions set out in those provisions.

 

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