02 May, 2017

Press Pause - Sale of Multimedia Players to Facilitate Copyright Infringement is a Communication to the Public

The question of what amounts to a 'communication to the public' under EU law has been debated and adjudicated on fiercely in the last couple of years (discussed more here, here, here, here and here) with very little or no end in sight in the near future. Every decision seems to make an ultimate determination more and more elusive, and this writer for one thinks that the matter will never be decided. Even so, the Court of Justice of the EU has been busy yet again, and a recent decision discussing the sale of devices that aid the infringement of copyright was awaited keenly by many. After some time, the CJEU finally rendered its verdict last week.

The case of Stichting Brein v Jack Wullems dealt with the sale of a multimedia player (Filmspieler) that came pre-loaded with applications and open-source software that allowed you to access pay-for content online for free using your own TV. The Filmspieler was sold on a variety of websites, including Mr Wullems' own website. Stichting Brein found out about the sale of the Filmspieler, and requested that Mr Wullems stop selling the device, which he refused to do. Stichting Brein then took the matter to court, which ultimately ended up in the CJEU, where Stichting Brein asked four questions from the Court.

The first and second questions were dealt with together by the CJEU, which asked in essence "...whether the concept of ‘communication to the public’, within the meaning of Article 3(1) of [the InfoSoc Directive], must be interpreted as covering the sale of a multimedia player… on which there are pre-installed add-ons, available on the internet, containing hyperlinks to websites… on which copyright-protected works have been made available to the public without the consent of the right holders".

What 'communication to the public' entails requires a certain set of criteria to be fulfilled, namely an ‘act of communication’ of a work and the communication of that work to a ‘public’. Whether there has been an act of communication requires a more flexible approach where certain complementary criteria, taken holistically, are applied to the act. A particular focus is on whether, in making the act of communication, in full knowledge of the consequences, intervenes to give access to a protected work to a customer, and without their intervention, the customer would not have had access to the work in question.

A 'public' is defined as an indeterminate number of potential viewers, but implies a fairly large number of people viewing the work. The works have to, however, be communicated to a 'new public' or via new means that were not used in its prior communication. Finally, whether the communication makes a profit or not is not a wholly irrelevant criterion in this determination.

The Court therefore had to assess whether the sale of a multimedia player, as described above, would amount to a 'communication to the public'.

Dave was too lazy to care about his Filmspieler no longer working
While the InfoSoc Directive does expressly exclude the provision of physical facilities enabling or making a communication to the public, the Court determined that this didn't in itself limit it from the sale of such devices. The CJEU focussed on the pre-installation of the applications allowing for the infringing activities, which, according to the Court: "...enable[ed] a direct link to be established between websites broadcasting counterfeit works and purchasers of the multimedia player, without which the purchasers would find it difficult to benefit from those protected works", separating it from the mere provision of physical facilities for doing so.

Through this the CJEU considered that "...the provision of a multimedia player such as that at issue in the main proceedings enables, in view of the add-ons pre-installed on it, access via structured menus to links that those add-ons which, when activated by the remote control of that multimedia player, offer its users direct access to protected works without the consent of the copyright holders and must be regarded as an act of communication". Clearly the Court distinguishes between the provision of a device that would have the capability of utilizing such applications, and the pre-installation of those applications on the same device, where the proactive step of installation puts it beyond the 'mere provision of physical facilities' under the Directive.

Whether the act of communication had been done to a 'public' still remained, and the Court decided that, as the Filmspieler had been purchased by a large amount of people, and continued to be available for further purchases, and clearly the communication was therefore aimed at an indeterminate number of people amounting to a 'public' under the Directive. The Filmspieler made the protected works also available to a 'new' public, as the material accessed was not freely available online for all to view, and the Filmspieler made it available to a 'new' public beyond the contemplation of the rightsholder when the works were published. Mr Wullems knew, or ought to have known, that the hyperlinks posted provided access to works illegally placed online. Finally, if the posting of the hyperlinks is done seeking gain or profit, it is expected that the poster would check the links for legality, presuming that any illegal hyperlinks would have been included within the full knowledge of the poster. Mr Wullems sought profit through the sale of the multimedia player, and thus, his sale of the Filmspieler amounted to a communication to the public.

The CJEU was then faced with two questions, which dealt with the streaming of content, but the questions themselves were only treated as hypotheticals and didn't directly apply to the case at hand. The questions asked "...whether the provisions of Article 5(1) and (5) of [the InfoSoc] Directive… must be interpreted as meaning that acts of temporary reproduction, on an 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 satisfies the conditions set out in those provisions". The Article in question provides that, in essence, any temporary reproductions that are transient or incidental (e.g. streaming) are exempt from the rights afforded in the Directive in Article 2.

For Article 5 to apply, certain conditions need to be fulfilled, namely: 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. All of the conditions are cumulative, and need to be fulfilled for the exemption to apply. Additionally, the use under the exemption cannot conflict with a normal exploitation of the work and prejudice the interests of the author.

The key aim of Article 5 is therefore to protect innocent conduits between two parties or entities, such as the ISP, not causing liability for transient copying of works for the facilitation of services between other parties.

The Court ultimately saw that "...temporary acts of reproduction, on a multimedia player such as that at issue in the main proceedings, of copyright-protected works obtained from streaming websites belonging to third parties offering those works without the consent of the copyright holders are such as to adversely affect the normal exploitation of those works and causes unreasonable prejudice to the legitimate interests of the right holder, because... that practice would usually result in a diminution of lawful transactions relating to the protected works, which would cause unreasonable prejudice to copyright holders". Due to the prejudice to the legitimate interests of the rightsholders through the streaming of content through the Filmspieler, the temporary copies made for the purpose of streaming would not be exempt by Article 5.

The decision in the case is clearly a positive one for rightsholders, particularly trying to combat the sale of multimedia devices such as in the case. What remains key in the case is the provision of physical facilities (in itself not infringing) in addition to facilitating copyright infringement can turn the provision of physical facilities into an infringing act. One would have to therefore be careful about the content and usability of devices that have the capability of infringing copyright, particularly with pre-installed software. While the case does not settle things once and for all, it remains an important step in the progression of the definition of a 'communication to the public' under the Directive.

Source: IPKat

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