Court of Justice of the European Union reinforces copyright protection

On 30 September 2015 the Court in Midden-Nederland requested a preliminary ruling regarding the interpretation of the Directive 2001/29/EC of the European Parliament and of the Council of 21 May 2001 on harmonisation of certain aspects of copyright and related rights in the information society.

The request was made as a result of a dispute between Stichtig Brein, the foundation with a purpose to protect copyright, and J.F. Wullmsem, who was selling multimedia players via internet sites. J.F. Wullemsem advertised his devices as enabling to watch, freely and easily, on a television screen, audiovisual materials without the consent of the right holders. Add-ons created by third parties were installed on the player ‘filmspeler’ that connected directly to streaming websites offering to users access to copyrighted works. Stichtig Brein asked J.F. Wullemsem to stop the abovementioned actions and filed a claim to stop selling the multimedia players such as ‘filmspeler’.

In the light of art. 3 and art. 5 of the Directive 2001/29/EC both the ‘communication to the public’ and ‘temporary reproduction’ of copyright-protected works depends on the consent of the right holders. Exceptionally, after fulfilling additional requirements, it is possible to reproduce the works if the reproduction is temporary or additional.

The CJEU in the ruling of 26 April 2017 considered the following questions:

-does the action taken by J.F. Wullems should be considered as ‘communication to the public’ of the copyright-protected work, and

-does the exception to the obligation to obtain the ‘temporary reproduction’ authorisation include reproduction of the content through hyperlinks such as the ones installed on the player ‘filmspeler’.

The Court noted that the essence of the proceedings concerns not so much the provision of equipment enabling access to audiovisual works, but pre-installation of the add-ons in the players directing to illegal streaming services. According to the Court, the described action has led to the communication to the public that was not taken into account by the copyright owner. What is more, according to the Court, the use of the player may unreasonably prejudice the interests of the right holder.

In view of the above, the Court has ruled that the notion of ‘communication to the public’ includes the sale of a multimedia player such as ‘filmspeler’. In addition, in the Court’s view streaming from a website belonging to a third party on such a device does not fall within the exception of the obligation to obtain consent for ‘temporary reproduction’.