Ag Szpunar Advises Cjeu To Dominion That The Pirate Bay Makes Acts Of Communication To The Public
This post, offset published on the IPKat, is from Eleonora Rosati
Is at that topographic point a communication to the populace inside the pregnant of Article 3(1) of the InfoSoc Directive by the operator of a website [The Pirate Bay, TPB], if no protected industrial plant are available on that website, but a scheme be past times agency of which metadata on protected industrial plant which is acquaint on the users’ computers is indexed together with categorised for users, so that the users tin give notice line together with upload together with download the protected industrial plant on the footing thereof?
This is the principal query that the Dutch Supreme Court (Hoge Raad der Nederlanden) referred to the Court of Justice of the European Union (CJEU) in Stichting Brein, C-610/15.
As readers volition promptly recall, this is exactly the terminal inwards a(n impressive, quantity-wise) serial of references for a preliminary ruling seeking clarification on the interpretation of the right of communication to the populace inside Article 3(1) of the InfoSoc Directive, the well-nigh immediate precedents being here].
Background
There is non much to say here. Dutch anti-piracy organisation Stichting Brein applied for an injunction (to hold upwards granted nether the Dutch equivalent of Article 8(3) of the InfoSoc Directive) against access providers Ziggo together with XS4ALL to block access past times recipients of their services to the meshing addresses of the website of TPB.
That application, upheld at offset instance, was dismissed on appeal, essentially on the grounds, first, that it is the recipients of the services of the defendants inwards the principal proceedings, together with non TPB, which are the originators of the copyright infringements and, secondly, that the blocking sought would non hold upwards proportionate to the aim pursued, namely the effective protection of copyrights.
Stichting Brein appealed on a betoken of police against the latter determination earlier the referring court.
Today's Opinion
Background
There is non much to say here. Dutch anti-piracy organisation Stichting Brein applied for an injunction (to hold upwards granted nether the Dutch equivalent of Article 8(3) of the InfoSoc Directive) against access providers Ziggo together with XS4ALL to block access past times recipients of their services to the meshing addresses of the website of TPB.
That application, upheld at offset instance, was dismissed on appeal, essentially on the grounds, first, that it is the recipients of the services of the defendants inwards the principal proceedings, together with non TPB, which are the originators of the copyright infringements and, secondly, that the blocking sought would non hold upwards proportionate to the aim pursued, namely the effective protection of copyrights.
Stichting Brein appealed on a betoken of police against the latter determination earlier the referring court.
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| AG Maciej Szpunar |
AG Szpunar has exactly issued his Opinion, advising the CJEU to reply the query of the Dutch Supreme Court inwards the AFFIRMATIVE.
More specifically, "the fact that the operator of a website makes it possible, past times indexing them together with providing a search engine, to detect files containing industrial plant protected past times copyright which are offered for sharing on a peer-to-peer network, constitutes a communication to the populace inside the pregnant of Article 3(1) of [the InfoSoc Directive], if that operator is aware of the fact that a piece of occupation is made available on the network without the consent of the copyright holders together with does non accept activeness inwards monastic tell to brand access to that piece of occupation impossible." [para 54]
The Opinion is EXTREMELY interesting, for a number of reasons.
EU, non national solutions = a affair of primary liability
It is sufficient to banker's complaint that the AG rejected at the outset the catch of the European Commission together with Great Britain that whatever solution to the possible liability of a site similar The Pirate Bay should hold upwards found nether national law [translated (possibly): nether secondary liability, an expanse unharmonised at the European Union level].
According to the AG this would lead [and has led] to real diverging approaches together with ultimately undermine the objective of the European Union legislature to harmonise the substantial orbit of the rights enjoyed past times authors together with rightholders inside the unmarried market [para 3].
More specifically, "the fact that the operator of a website makes it possible, past times indexing them together with providing a search engine, to detect files containing industrial plant protected past times copyright which are offered for sharing on a peer-to-peer network, constitutes a communication to the populace inside the pregnant of Article 3(1) of [the InfoSoc Directive], if that operator is aware of the fact that a piece of occupation is made available on the network without the consent of the copyright holders together with does non accept activeness inwards monastic tell to brand access to that piece of occupation impossible." [para 54]
The Opinion is EXTREMELY interesting, for a number of reasons.
EU, non national solutions = a affair of primary liability
It is sufficient to banker's complaint that the AG rejected at the outset the catch of the European Commission together with Great Britain that whatever solution to the possible liability of a site similar The Pirate Bay should hold upwards found nether national law [translated (possibly): nether secondary liability, an expanse unharmonised at the European Union level].
According to the AG this would lead [and has led] to real diverging approaches together with ultimately undermine the objective of the European Union legislature to harmonise the substantial orbit of the rights enjoyed past times authors together with rightholders inside the unmarried market [para 3].
The TPB instance is unlike from GS Media's
Logically linked amongst the betoken above, the AG also noted that the problems raised inwards this instance are unlike from those addressed in Svensson and GS Media.
According to the AG, inwards fact, piece those cases concerned the secondary communication of industrial plant already accessible on the meshing past times a individual providing the online content himself, the acquaint instance concerns master copy communication, made on a peer-to-peer (P2P) network. As such, the CJEU reasoning inwards those cases cannot hold upwards straight applied to the instance at hand [para 4].
The "unavoidable" role of TPB
Following a review of the technical functioning of P2P networks, the AG said that what is relevant inwards monastic tell to reply the query posed past times the Dutch Supreme Court is the consideration of the role played past times websites such every bit TPB inwards file-sharing on P2P networks: "[t]hat role is crucial" [para 26].
More specifically, the utilization of whatever P2P network "depends on the possibility of finding peers available to percentage the desired file. The information, whether it is technically inwards the shape of torrent files, ‘magnet links’ or roughly other form, is found on websites such every bit TPB. Those sites furnish non exclusively a search engine but also, every bit inwards the instance of TPB, indexes of the industrial plant contained inwards those files, classified inwards diverse categories, for example, ‘100 best’ or ‘the latest’. So it is non fifty-fifty necessary to hold off for a detail work, it is sufficient to select from those on offer, every bit inwards the catalogue of a library (or rather an good or video collection, since it is mainly music together with films). Those sites also oftentimes furnish additional information, inter alia on the estimated download fourth dimension together with the number of active ‘seeders’ together with ‘leechers’ for a detail file. Although, every bit the defendants inwards the principal proceedings contend, it is hence theoretically possible to detect files offered for sharing on a peer-to-peer network without using a site similar TPB, inwards practice, the search for such files by together with large leads to such a site or a site aggregating information from several peer-to-peer networks. The role of websites such every bit TPB is hence practically unavoidable inwards the functioning of those networks, inwards whatever lawsuit for the average meshing user." [paras 26-27]
Communication to the public
Having exhausted these preliminary remarks, the AG turned to Article 3(1) of the InfoSoc Directive together with what makes an deed of communication to the public.
As usual [just think of VOB, Mc Fadden, or Hotel Edelweiss], he provided an analysis of the history together with rationale of the relevant provision considered together with recalled [as per consistent CJEU instance law, at to the lowest degree since SGAE] that to take away maintain an deed of communication to the populace it is necessary to have: (1) an deed of communication, together with (2) the presence of a public [para 36].
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| How Kats communicate |
Considering the offset condition, ie an deed of communication, the AG recalled that the CJEU has emphasised "the essential role of the role musician originating the communication together with the deliberate nature of its intervention. That role musician makes an deed of communication when it intervenes, inwards total cognition of the consequences of its action, to give its customers access to a protected work, together with does so inwards detail where without that intervention its customers would not, inwards principle, hold upwards able to bask the broadcast work" [para 37, recalling GS Media, para 35].
The AG so tackled the thorny number of whether transmission is genuinely required [readers volition recollect that the European Copyright Society stated that this is necessary to take away maintain an deed of communication].
While it is truthful that "in the instance of making available, the actual transmission of the piece of occupation takes house exclusively potentially together with on the first of the recipient", the AG [correctly] stated "the mightiness of the copyright holder to forestall the communication arises at the actual fourth dimension of making available, irrespective of whether together with when transmission genuinely takes place." [para 38]
(2) The presence of the public: the 'new public'
Turning to the 2nd criterion, ie the presence of the public, this involves 2 requirements: (a) an indeterminate but fairly large number of potential recipients [para 39]; together with (b) a 'new public' [para 40] which exclusively comes into consideration when the technical agency used is unlike from that used for the initial communication [para 42].
Communication to the populace on P2P networks
According to the AG, "[t]here is no query ... that the making available to the populace of copyright-protected industrial plant takes house where those industrial plant are shared on a peer-to-peer network." [para 44]
The query is, however, who is to hold upwards regarded every bit making the relevant deed of communication: is the P2P network users or, rather, the operator of an indexing site such every bit TPB?
According to the AG, piece users deliberately make the industrial plant inwards their possession available to other users of the network [para 49], "those works would non hold upwards accessible together with the functioning of the network would non hold upwards possible, or would at whatever charge per unit of measurement hold upwards much to a greater extent than complex together with its utilization less efficient, without sites such every bit TPB, which enable industrial plant to hold upwards found together with accessed. The operators of those sites hence conform the scheme which enables users to access industrial plant that are made available past times other users. Their role may hence hold upwards regarded every bit necessary." [para 50]
The operator of a site that exactly indexes the content that is acquaint on the P2P network has, inwards principle, no influence over the appearance of a given piece of occupation on that network (it is exclusively an intermediary which enables users to percentage the content on a P2P basis). As long every bit he is unaware that the piece of occupation has been made available illegally or if, in 1 lawsuit it has been made aware of the illegality, it acts inwards proficient organized religious belief to rectify the matter, it has no liability for the users' communications.
"However, from the minute that operator has [actual, eg past times agency of a notification from the relevant rightholder: para 52] knowledge of the fact that making available took house inwards breach of copyright together with does non accept activeness to homecoming access to the piece of occupation inwards query impossible, its comport may hold upwards regarded every bit existence intended to allow, expressly, the continuation of the illegal making available of that piece of occupation and, hence, every bit an intentional action." [para 51]
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| No presumption of knowledge |
The AG rejected that inwards a instance similar this it would hold upwards appropriate to take away maintain a presumption of cognition similar the 1 adopted in GS Media [para 52] because such a presumption would amount to imposing on operators of indexing sites of P2P networks, which ordinarily operate for profit, a full general obligation to monitor the indexed content [contrary to Article fifteen of the Ecommerce Directive].
The TPB operators: articulation liability
Accordingly, inwards a province of affairs similar TPC, the intervention of their operators "meets the atmospheric condition of existence necessary together with deliberate, set downwards inwards the case-law of the Court" together with those operators should hence "also hold upwards considered, simultaneously together with jointly amongst the users of the network, every bit originating the making available to the populace of industrial plant that are shared on the network without the consent of the copyright holders, if they are aware of that illegality together with do non accept activeness to brand access to such industrial plant impossible."
The 2nd question
The AG also considered the 2nd question [to hold upwards answered exclusively if the CJEU answers the 1 on communication to the populace inwards the negative], ie whether Article 8(3) of the InfoSoc Directive must hold upwards interpreted every bit offering orbit for obtaining an injunction against an Internet access provider ordering it to block access for its users to an indexing site of a peer-to-peer network past times agency of which copyright infringements take away maintain been committed, fifty-fifty if the operator of that site does non itself communicate to the populace the industrial plant made available on that network.
Applicability of Article 8(3) injunctions to sites such every bit TPB
The AG noted that the exclusively peculiarity of a blocking injunction [ie a mensurate that the CJEU considered compatible amongst European Union law, although inwards a unlike context, in Telekabel] in instance similar the 1 at mitt would hold upwards that blocking of access to the TPB site would touching on non exclusively users who commit copyright infringements but also the TPB site, which would non hold upwards able to offering its services to users connected to the meshing through the intermediary of the defendants inwards the principal proceedings [para 61].
The AG noted that the circumstances envisaged inwards Article 8(3) presuppose the existence of a link betwixt the dependent area of the injunction together with the copyright infringement. Influenza A virus subtype H5N1 mensurate blocking a website implies that it has been established that the operator of that site has been held liable for copyright infringement using the services of the intermediary to which the injunction is addressed.
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| Blocking order |
Overall, Article 8(3) should hold upwards interpreted every bit permitting an injunction to hold upwards obtained against an intermediary ordering it to block access for its users to an indexing site of a P2P network, if the operator of that site can, nether national law, hold upwards held liable for copyright infringements committed past times users of that network, provided that mensurate is proportionate to the significance together with seriousness of the copyright infringements committed, which is a affair for the national courtroom to determine [para 84].
Comment
This is yet roughly other thoughtful together with proficient sentiment of AG Szpunar.
His structure of the right of communication to the populace appears appropriate non exclusively inwards lite of pre-existing CJEU instance law [and also the InfoSoc objective to furnish a high grade of protection], but also ... despite it. His conclusion that the presumption of cognition adopted in GS Media should non detect application inwards a instance similar the 1 of operators of indexing sites is inwards fact sensible [that the GS Media presumption of cognition is problematic is apparent from the early on national applications of this CJEU judgment in Sweden - here, here, and here -, Germany - here and here - and the Czechia - here].
Equally sensible [a reality check] is the consideration that inwards situations similar TPB the intervention of its operators inwards facilitating the telephone commutation of copyright industrial plant is deliberate and, indeed, essential
Big kudos to AG Szpunar. Let's directly reckon if the CJEU agrees amongst him. Stay tuned!
Posted By Eleonora Rosati to The IPKat on 2/08/2017 12:43:00 pm
Ag Szpunar Advises Cjeu To Dominion That The Pirate Bay Makes Acts Of Communication To The Public
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