The matter at hand

This matter deals with the question of whether the sale of multimedia devices giving access to unauthorized content can constitute copyright infringement. This question arose in proceedings initiated by Dutch anti-piracy organization Brein against an individual named Wullems, over the sale of various models of a multimedia player under the name ‘Filmspeler’, which could be used to watch audiovisual material available on the internet on a television screen.

In the matter at hand, the player contained add-ons (made available by third parties on the internet) pre-installed by Wullems, containing hyperlinks which, when activated by the remote control, connected to streaming websites of third parties giving access to either authorized or unauthorized content. The add-ons’ function was to retrieve the content from the streaming websites and make it start playing, with a simple click, on the multimedia player connected to the television screen.

Brein claimed that through the sale of the multimedia device containing said pre-installed add-ons, Wullems was carrying out a communication to the public in breach of Dutch copyright law.

In those circumstances, the Dutch court in first instance asked whether Article 3(1) of the Copyright DirectiveDirective 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 covers the selling of such devices and, if so, whether the limitation provided for in Article 5(1) and (5) of the Copyright DirectiveDirective 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 covers a temporary reproduction made by an end user who obtains access to unauthorized copyright-protected content.

The judgment of the ECJ

With reference to its judgments in Reha Training (C-117/15) and GS Media (C-160/15), the ECJ first of all stresses that the concept of ‘communication to the public’ must be interpreted broadly, in order to establish a high level of protection for authors (paragraph 27). With reference to the same case-law, the ECJ recalls, that the concept of ‘communication to the public’ includes two cumulative criteria, namely, an ‘act of communication’ of a work and the communication of that work to ‘a public’ (paragraph 29).

As regards the question of whether the sale of a multimedia player is an ‘act of communication’, the ECJ recalls that it has already held in Svensson (C‑466/12), BestWater (C‑348/13) and GS Media (C‑160/15), “that the provision, on a website, of clickable links to protected works published without any access restrictions on another site, affords users of the first site direct access to those works” (paragraph 37). The ECJ notes that this is also the case for the sale of a multimedia player in question (paragraph 38).

As to Mr Wullems’ role in affording users direct access to the works, the ECJ rules that it cannot be said that he merely provides physical facilities for enabling or making a communication. “Mr Wullems, with full knowledge of the consequences of his conduct, pre-installs onto the ‘filmspeler’ multimedia player that he markets add-ons that specifically enable purchasers to have access to protected works published — without the consent of the copyright holders of those works — on streaming websites and enable those purchasers to watch those works on their television screens (…). That intervention enabling 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, is quite different from the mere provision of physical facilities (…). In that regard, it is clear from the observations presented to the Court that the streaming websites at issue in the main proceedings are not readily identifiable by the public and the majority of them change frequently” (paragraph 41).

Consequently, the ECJ holds that the provision of a multimedia player such as that at issue in the main proceedings must be regarded as an act of communication within the meaning of Article 3(1) of the Copyright DirectiveDirective 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.

The ECJ continues that, obviously, this act of communication is directed at ‘a public’, considering that the multimedia player “has been purchased by a fairly large number of people” and is intended for “all persons who could potentially acquire that media player” and who “may access the protected works at the same time, in the context of the streaming of the works at issue on the internet.” Thus, the communication is aimed at “an indeterminate number of potential recipients and involves a large number of persons” (paragraph 45).

Considering, furthermore, that the ECJ has already held in GS Media (C-160/15) that the provision of a hyperlink to unauthorised content constitutes a communication to a ‘new public’ (paragraph 48) and that Mr Wullems supplied the multimedia player with a view to making a profit, “the price for the multimedia player being paid in particular to obtain direct access to protected works available on streaming websites without the consent of the copyright holders” (paragraph 51), the ECJ concludes that the sale of the ‘Filmspeler’ constitutes a ‘communication to the public’ within the meaning of Article 3(1) of the Copyright DirectiveDirective 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 (paragraph 52).

The ECJ then examines whether the exemption of Articles 5(1) and (5) of the Copyright DirectiveDirective 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 applies, which allows acts of temporary reproduction if five cumulative conditions are met, namely (1) the act is temporary, (2) it is transient or incidental, (3) it is an integral and technical part of a technological process, (4) 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 subject matter, and (5) that act does not have any independent economic significance (paragraph 60). Furthermore, the ECJ notes that the exemption is to be applied only in certain special cases which do not impair the normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the right holder (paragraph 63).

The ECJ holds that in this case the fourth criterion referred to above, requiring the purpose of the process to enable a lawful use of a work, has not been met. After all, the use of the works at issue was not authorised by the copyright holders and is restricted by the applicable legislation (paragraph 66). In this connection, the ECJ observes that “the main attraction of [the] player for potential purchasers is the pre-installation of the add-ons concerned” and that it therefore must be held “that it is, as a rule, deliberately and in full knowledge of the circumstances that the purchaser of such a player accesses a free and unauthorised offer of protected works” (paragraph 69).

In addition, the ECJ notes that application of the exemption in this case would also fail the three-step-test, considering that this would adversely affect the normal exploitation of protected works and would cause unreasonable prejudice to the legitimate interests of the right holders (paragraph 70).