Cjeu Inwards Filmspeler Rules That The Sale Of A Multimedia Histrion Is A ‘Communication To The Public’

This update from Eleonora Rosati writing on the IPKat 

Did y'all think that the floor amongst copyright, linking, together with the correct of communication to the populace was over? 

Of course of educational activity not.

Today the Court of Justice of the European Union (CJEU) issued its long-awaited [even to a greater extent than keenly awaited is all the same the forthcoming ruling in Ziggo, aka The Pirate Bay case, here] decision in Filmpeler, C-527/15.

Background

As readers volition remember, this reference for a preliminary ruling had arisen inwards the context of litigation betwixt Dutch anti-piracy organization Stichting Brein and Jack Frederik Wullems over the sale, past times the latter together with through - amidst other things - his site www.filmspeler.nl, of diverse models of a multimedia role instrumentalist nether the scream ‘filmspeler’. 

Filmspeler is a role instrumentalist for connecting a source of picture and/or audio signals to a telly screen. If the multimedia role instrumentalist is connected to the internet, on the 1 hand, together with to a user’s covert (for example, a telly screen), on the other, the user is able to current the picture together with the audio from a spider web portal or website.

Among other things, Wullems installed add-ons [over which he had no influence] containing hyperlinks which, if clicked, would redirect the user to streaming websites, controlled past times 3rd parties, on which films, telly serial together with (live) sporting events could endure enjoyed costless of charge, amongst or without the ascendancy of relevant rightholders. 

Stichting Brein sued Wullems for copyright infringement earlier the District Court of Central Netherlands, claiming that through the sale of the Filmspeler player, Wullems was carrying out a ‘communication to the public’ reverse to Dutch copyright law.

The District Court held the thought that the relevant Dutch provisions should endure interpreted inwards lite of Article 3 of the InfoSoc Directive but considered that: 

(1) CJEU illustration police existing at that time [notably Svensson and BestWater] would not provide criteria sufficient for reaching a conclusion inwards this case; and 

(2) it was unclear whether the defence strength for temporary copies, pursuant to the Dutch transposition of Article 5(1) of the InfoSoc Directive, would endure applicable to relevant streaming activities.

The District Court decided thence to rest the proceedings together with essay guidance from the CJEU every bit to the following:

‘1)      Must Article 3(1) of the [InfoSoc] Directive endure interpreted every bit pregnant that in that place is “a communication to the public” inside the pregnant of that provision, when someone sells a production (mediaplayer) inwards which he has installed add-ons containing hyperlinks to websites on which copyright-protected works, such every bit films, serial together with alive broadcasts are made straight accessible, without the ascendancy of the correct holders?

2)      Does it brand whatsoever difference:

-      whether the copyright-protected industrial plant every bit a whole convey non previously been published on the cyberspace or convey been published exclusively through subscriptions amongst the ascendancy of the correct holder?

-      whether the add-ons containing hyperlinks to websites on which copyright-protected industrial plant are made straight accessible without the ascendancy of the correct holders are freely available together with tin flaming too endure installed inwards the mediaplayer past times the users themselves?

-      whether the websites together with thus the copyright-protected industrial plant made accessible thereon — without the ascendancy of the correct holders — tin flaming too endure accessed past times the populace without the mediaplayer?

3)      Should Article 5 of the [InfoSoc] Directive (Directive 2001/29/EC) endure interpreted every bit pregnant that in that place is no “lawful use” inside the pregnant of Article 5(1)(b) of that Directive if a temporary reproduction is made past times an halt user during the streaming of a copyright-protected run from a third-party website where that copyright-protected run is offered without the ascendancy of the correct holder(s)?

4)      If the answer to the 3rd enquiry is inwards the negative, is the making of a temporary reproduction past times an halt user during the streaming of a copyright-protected run from a website where that copyright-protected run is offered without the ascendancy of the correct holder(s) so reverse to the “three-step test” referred to inwards Article 5(5) of the [InfoSoc] Directive (Directive 2001/29/EC)?’

Today's decision

At a starting fourth dimension glance it would look that the CJEU substantially followed the Opinion of Advocate General (AG) Manuel Campos Sánchez-Bordona [here], who proposed a broad(er) interpretation of the correct of communication to the populace and, amongst it, a broader reading of what amounts to an 'indispensable intervention'.

The CJEU conclusion is non yet available on the Curia website, but according to the press release:

"In its judgment today, the Court of Justice holds that the sale of a multimedia player, such every bit the 1 inwards question, is a ‘communication to the public’, inside the pregnant of the directive. 

The Court recalls, inwards that regard [and unsurprisingly], its case-law according to which the aim of the directive is to institute a high marking of protection for authors. The concept of ‘communication to the public’ must thence endure interpreted broadly. In addition, the Court has already held that the availability, on a website, of clickable links to protected industrial plant published without whatsoever access restrictions on about other website offers users of the starting fourth dimension website lead access to those works. That is too the illustration inwards honour of a sale of the multimedia role instrumentalist inwards question. 

In the same way, Mr Wullems, inwards total noesis of the consequences of his conduct, preinstalls, on the multimedia role instrumentalist add-ons that teach inwards possible to convey access to protected industrial plant together with to lookout adult man those industrial plant on a telly screen. Such actions are non to endure confused amongst the mere provision of physical facilities, referred to inwards the directive. In that regard, it is clear from the observations submitted to the Court that streaming websites are non readily identifiable past times the populace together with the bulk of them alter frequently. 

The Court too observes that, according to the referring court, the multimedia role instrumentalist has been purchased past times a fairly large number of people. Furthermore, the communication at number covers all persons who could potentially teach that media role instrumentalist together with convey an cyberspace connection. Thus, that communication is aimed at an indeterminate number of potential recipients together with involves a large number of persons. In addition, the provision of the multimedia role instrumentalist is made amongst a thought to making a profit [clearly consideration of the defendant's profit-making intention was due to teach central, peculiarly after GS Media], the cost for the multimedia role instrumentalist beingness paid inwards particular to obtain lead access to protected industrial plant available on streaming websites without the consent of the copyright holders. 

The Court too finds that temporary acts of reproduction, on that multimedia player, of a copyright protected run obtained past times streaming on a website belonging to a 3rd political party offering that run without the consent of the copyright holder, cannot endure exempted from the correct of reproduction [within Article 5(1)]. 

Under the directive, an deed of reproduction is exclusively exempt from the correct of reproduction if it satisfies v conditions, namely (1) the deed is temporary, (2) it is transient or incidental, (3) it is an integral together with technical business office of a technological process, (4) the sole role of that procedure is to enable a transmission inwards a network betwixt 3rd parties past times an intermediary or a lawful utilisation of a run or dependent champaign matter, together with (5) that deed does non convey whatsoever independent economical significance. Those atmospheric condition are cumulative inwards the feel that non-compliance amongst 1 of them volition Pb to the deed of reproduction non beingness exempted. Furthermore, the exemption is to endure applied exclusively inwards for sure special cases which practice non impair the normal exploitation of the run or other dependent champaign affair together with practice non unreasonably prejudice the legitimate interests of the correct holder. 

In the introduce illustration together with having regard, inwards particular, to the content of the advertising of the multimedia role instrumentalist together with to the fact that the top dog attraction of that role instrumentalist for potential purchasers is the pre-installation of the add-ons concerned, the Court finds that the purchaser of such a role instrumentalist accesses a costless together with unauthorised offering of protected industrial plant deliberately together with inwards total noesis of the circumstances. 

Furthermore, acts of temporary reproduction, on the multimedia role instrumentalist inwards question, of copyright-protected industrial plant adversely affects the normal exploitation of those industrial plant together with causes unreasonable prejudice to the legitimate interests of the copyright holders because it commonly results inwards a diminution of the lawful transactions relating to those protected works."

*Who* makes acts of communication to the public?

Flash comment

A to a greater extent than detailed analysis volition endure provided every bit presently every bit the judgment becomes available. 

In the meantime, I tin flaming merely tell that this judgment is adept intelligence for rightholders, including those who are advocating the introduction of the 'value gap' provision inwards Article xiii of the draft directive on copyright inwards the Digital Single Market. The argue is that amongst this conclusion the CJEU appears to convey relaxed the notion of 'indispensable intervention' together with potentially paved the means to a broadening of the types of subjects that mightiness endure regarded every bit primarily responsible for acts of communication to the public.

In this article I wrote on GS Media I suggested inwards fact that, should the CJEU follows the AGs inwards both Filmspeler and Ziggo, the outcome indicated higher upward mightiness naturally follow.

In this sense, the concept of ‘communication to the public’ has been undergoing an development together with the frontier Filmspeler and Ziggo represent is that of determining non just what amounts to an deed of communication to the public, but also who makes an deed of communication to the public. 

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and a to a greater extent than detailed analysis here https://everythingarticlesaddict.blogspot.com//search?q=