The making available and management of a platform, such as the pirate bay, which allows users to locate protected works and to share those works in the context of a peer-to-peer network, is a communication to the public

C-610/15

Brein v Ziggo and XS4ALL

Copyrights: Communication to the public

14 Jun 2017

The matter at hand

In this landmark case between the Dutch anti-piracy organization Brein on the one hand and internet access providers Ziggo and XS4ALL on the other, the Supreme Court of the Netherlands referred questions to the ECJ asking, in essence, whether the online sharing platform The Pirate Bay, notorious for sharing mainly pirated content, commits copyright infringement.

In the main proceedings, Brein's principal request was that Ziggo and XS4ALL be ordered to block the domain names and IP addresses of The Pirate Bay in order to prevent their services from being used to infringe copyright and related rights. The District Court in The Hague upheld Brein’s requests, but its decision was reversed on appeal.

Being asked to review the appeal judgment, the Dutch Supreme Court held that the ECJ's case-law did not allow it to reply with any certainty to the question as to whether The Pirate Bay communicates works to the public within the meaning 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 and referred the matter to the ECJ.

The judgment of the ECJ

The ECJ recalls that the concept of 'communication to the public' involves two cumulative criteria, namely an 'act of communication' of a work and the communication of that work to a 'public' (paragraph 24) and must be interpreted broadly (paragraph 22).

As regards the question of whether making available and managing an online sharing platform, such as The Pirate Bay, is an ‘act of communication’, the ECJ refers to its case-law from which it infers that “any act by which a user, with full knowledge of the relevant facts, provides its clients with access to protected works is liable to constitute an ‘act of communication’” (paragraph 34).

The ECJ then considers, first, that copyright-protected works are, by means of The Pirate Bay, “made available to the users of the platform in such a way that they may access those works from wherever and whenever they individually choose” (paragraph 35).

Second, although the works thus made available have been placed online on that platform not by the platform operators but by the platform’s users, “the fact remains that those operators, by making available and managing an online sharing platform such as that at issue in the main proceedings, intervene, with full knowledge of the consequences of their conduct, to provide access to protected works, by indexing on that platform torrent files which allow users of the platform to locate those works and to share them within the context of a peer-to-peer network”. Without this intervention, “the works could not be shared by the users or, at the very least, sharing them on the internet would prove to be more complex” (paragraph 36). The operators of The Pirate Bay thus play an essential role in making the copyright-protected works available.

Finally, the ECJ rules that the activities of The Pirate Bay are not limited to merely providing physical facilities for enabling or making a communication, considering that it also indexes torrent files in such a way that the works to which the torrent files refer may be easily located and downloaded (paragraph 38).

In light of these circumstances, the ECJ concludes that the making available and management of an online sharing platform, such as The Pirate Bay, must be considered to be an act of communication (paragraph 39).

Regarding the question of whether the works are in fact communicated to a 'public', the ECJ recalls that the concept of 'public' refers to an indeterminate number of potential viewers and implies a fairly large number of people. In the present case, it is apparent that a large number of subscribers to Ziggo and XS4ALL have downloaded media files using The Pirate Bay. It is also clear, from The Pirate Bay's own claims, that the platform is used by several dozens of millions of users who can all access, at any time and simultaneously, the protected works which are shared by means of the platform without the consent of the rightholders. It follows that the protected works are indeed communicated to a 'public'.

As to the criterion of a ‘new’ public, the ECJ refers to its judgment in GS Media (C-160/15) in which it already held that the provision of a hyperlink to content published without the consent of the copyright holders constitutes a communication to a ‘new public’. The same applies to torrent files providing access to such content (paragraph 45).

Furthermore, the ECJ deems relevant that the making available and management of The Pirate Bay is carried out with the purpose of obtaining profit therefrom, as the platform generates considerable advertising revenues (paragraph 46).

For these reasons, the ECJ concludes that the concept of 'communication to the public', within the meaning 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, “must be interpreted as covering, in circumstances such as those at issue in the main proceedings, the making available and management, on the internet, of a sharing platform which, by means of indexation of metadata relating to protected works and the provision of a search engine, allows users of that platform to locate those works and to share them in the context of a peer-to-peer network.”

Commentary

This judgment is a very important win for Brein, paving the way for obtaining orders against internet access providers to block platforms like The Pirate Bay. This was very difficult in the past due to Dutch case-law which merely considered the making available of such platforms to constitute an unlawful act, but not a copyright infringement. As a result, the Dutch implementation of Article 8(3) 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 - providing that an injunction can be obtained against intermediaries (like internet access providers) whose services are used by a third party to infringe a copyright or related right - could not be used as a basis for a blocking order, since websites like The Pirate Bay did not qualify as third parties infringing a copyright or related right. Following the ECJ’s judgment in this case, Brein immediately applied for and obtained, in summary injunction proceedings, an order against Ziggo and XS4All to block The Pirate Bay.