21st June 2017

Filmspeler expands the definition of what counts as an “act of communication”

A recent CJEU judgment has been heralded as a landmark decision in favour of copyright holders due to its apparent enlargement of the net for what counts as an unauthorised act of communication.

The relevant law

The Infosoc Directive was created with the express aim of establishing a high level of protection for right holders. The reasoning is simple: in order for artists (in the broader sense of the word) to continue their creative work, they need to receive adequate reward for its use.

The Directive therefore creates exclusive rights enabling right holders to authorise others to, or prohibit them from, doing certain acts with copyrighted works. One of these rights, and the one relevant to this case, is the right of communication to the public (Article 3(1)).

Factual background

Mr Wullems developed and sold a multimedia player, Filmspeler, on which he had installed add-ons containing hyperlinks that redirected users to third party streaming websites. Some of these sites made available illegal copies of films and TV shows. The add-ons made it possible to play these files through a user-friendly interface, with structured menus and via a single click.

In adverts, Mr Wullems boasted that Filmspeler made it possible to freely and easily watch, on a TV screen, audiovisual material available on the internet without the consent of copyright holders. Stichting Brein, an anti-piracy organisation, brought a claim for copyright infringement.

The Netherlands court hearing the case decided to refer several questions to the CJEU for preliminary ruling. These questions fell into two broad categories:

– the meaning of “communication to the public”; and

– the circumstances in which Article 5 exemptions applied.

Communication to the public

The CJEU held that the Filmspeler multimedia player was an act of communication because Mr Wullems had, with full knowledge of the consequences, pre-installed add-ons that specifically enabled purchasers to access works published on hard-to-find streaming websites. Mr Wullems’ intervention enabled a direct link to be established between the websites broadcasting counterfeit works and the purchasers of Filmspeler, and as such, went beyond the “mere provision of physical facilities”.

Since the communication included anyone who had an internet connection and could potentially buy the player, it was a communication to an indeterminate, large number of potential recipients and therefore “to the public”. It was also directed at a “new” public, because Mr Wullems knew that the add-ons gave access to works illegally published on the internet without right holder consent. Indeed, his adverts for Filmspeler specifically stated as much.

Exemption

The CJEU held that the Article 5 exemption for temporary, transient or incidental copying was not available in this case.

Focusing on the “lawful use” requirement, the court considered whether the use in question was a use not restricted by the applicable legislation. In the circumstances, and particularly considering the content of the advertising, it was clear that the main attraction of Filmspeler for potential purchasers was the pre-installation of the add-ons enabling unauthorised access to protected works. As such, it was not a “lawful use”.

The CJEU noted further that the Article 5 exemption can only be applied in special cases which do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder (e.g. his right to receive monetary reward). Since the sale of Filmspeler aided access to unauthorised copies of copyrighted works, this clearly adversely affected the normal exploitation of those works and caused unreasonable prejudice to the legitimate interests of the right holder as the result would be a diminution of lawful transactions.

Comment

Filmspeler follows and builds upon a series of CJEU decisions, most notably GS Media.

Although arguably a natural evolution of previous case law, Filmspeler is significant as it appears to lessen the requirement that the intervention be indispensable in order for it to fall within Article 3(1). The CJEU noted that without the Filmspeler player it would have been much harder for the public to benefit from the protected works, as the sites in question were not readily identifiable and changed often. It therefore appears, after this ruling, that mere facilitation is enough for the act to be a direct infringement of copyright.

Also, as the exemption for temporary copies was not applicable here, Filmspeler may also pave the way for right holders to go after streaming sites where there is clear knowledge that the streamed works are unauthorised.

Filmspeler provides an interesting alternative to the traditional authorisation and joint tortfeasorship approach established in CBS Songs v Amstrad Consumer Electronics.