Streaming and anti-piracy: new judgment by the EU Court of Justice

by Tougane Loumeau (GIDE LOYRETTE NOUEL, France)

The Court of Justice of the European Union recently issued an interesting judgment in the copyright anti-piracy domain, and more specifically with regard to streaming on the internet. The judgment is favourable to the interests of copyright holders and the media industry.

The case involved Stichting Brein, a Dutch anti-piracy society and Mr Wullems, who marketed a multimedia playing device called Filmspeler, that acted as a medium between, on the one hand, an internet source of visual and/or sound data and, on the other hand, a television screen, thus enabling users to watch content from streaming websites on television. On that player, Mr Wullems installed open source software which made 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 linked to websites on which protected works were made available to internet users without the consent of the copyright holders.

The first set of questions referred to the CJEU, was whether the supplying of such devices should be regarded as “communicating a work to the public” in breach of legal EU copyright legislation. The main argument in support of the defendant was that “Infosoc” Directive 2001/29 states that the mere provision of physical facilities for enabling or making a communication does not in itself amount to ‘communication’ within the meaning of that directive.

In an GS Media case dated September 8, 2016, the Court held (i) that the provision of a link constitutes a ‘communication to the public’ where the person having posted it knew or ought to have known that such hyperlink provides access to a work illegally placed on the internet, and (ii) that such posting must be presumed to have occurred with the full knowledge of the protected nature of that work when it is carried out for profit. The Court applied those criteria and held that the sale of the ‘filmerspeler’ multimedia player was supplied with a view to making a profit, and made in full knowledge of the fact that the add-ons containing hyperlinks pre-installed on that player gave access to works published illegally on the internet.

The second set of questions referred to the CJEU, was whether the sole act of accessing unauthorised content from streaming websites may fall under the “temporary copy” exception laid out at article 5(1) of the Infosoc Directive, under which an act of reproduction may be exempted from reproduction right only if it satisfies five conditions, that is, where

– 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.

Seemingly in contrast to previous caselaw where it had seemed to regard mere reception and private visual display of restricted broadcasts by end-users as not illicit, the ECJ held that in the circumstances at stake, the purchaser of such a player is mainly attracted by the pre-installation of the add-ons concerned and accesses an unauthorised offer of protected works deliberately and in full knowledge of the circumstances.

Since such use is not lawful, the exception was held not to apply.