Europe’s Highest Court rules sellers of multimedia players could be infringing copyright

By Tina English
28 April, 2017

The Court of Justice of the European Union (“CJEU”) ruled on 26 April 2017 that the sale of a multimedia player which enables films that are available illegally on the internet to be viewed easily and for free on a television screen could constitute an infringement of copyright. While the case centred on one man’s business in the Netherlands, it will have wider implications for other similar types of multimedia players.

Dutch anti-piracy foundation, Stichting Brein, had issued proceedings in the Netherlands to try to stop the sale by a Mr Wullems of a multimedia player called “Filmspeler” which used open source software and add-ons to illegally give users access to copyright protected works . The Dutch Court referred questions to the CJEU including whether the marketing of the multimedia player amounted to “a communication to the public” in breach of Dutch and European copyright law^[1].

The Court held that it did and in doing so recalled its case law according to which the aim of the Copyright Directive is to establish a high level of protection to authors. Therefore, the concept of “communication to the public” must be interpreted broadly. The CJEU has already held that the availability, on a website, of clickable links to protected works published without any access restrictions on another website offers users of the first website direct access to those works^[2]. That is also the case in respect of a sale of the multimedia player in question.

The court noted that the device acts as a medium between a source of audiovisual data and a television screen. On the player, Mr Wullems, in full knowledge of the consequences of his conduct, pre-installed on the multimedia player, add-ons that make it possible to have access to protected works and to watch them on a television screen.

According to the referring court, the multimedia players were purchased by a “fairly large number of people”, and the CJEU said that the communication at issue covers all those people who could potentially acquire a media player and have an internet connection. Because of this, the communication is aimed at an indeterminate number of potential recipients. In addition, the provision of the multimedia player is made with a view to making a profit.

The player was advertised as making it easy and free to watch audiovisual material available on the internet on a television without the consent of the copyright holders. Having regard to the advertising and the fact that the player’s main attraction for potential customers is the pre-installation of the add-ons, the Court found that the purchaser accesses a free and unauthorised offer of protected works deliberately and in full knowledge of the circumstances.

The Court also found that temporary reproduction on a multimedia player, of a copyright protected work obtained by streaming on a website belonging to a third party offering that work without the consent of the copyright holder, is not exempt from the right of reproduction. The Court concluded that acts of temporary reproduction of copyright protected works on such multimedia players “adversely affects the normal exploitation of those works and causes unreasonable prejudice to the legitimate interests of the copyright holders” because it usually results in a decrease of the lawful transactions relating to those works.

The result of the decision will have an impact throughout the EU and here where similar media players are widely available. While the issue considered by the court is not the sale of the players in isolation but essentially the pre-loading of the players with technology that enables and actively promotes access to content available on streaming websites without the consent of the copyright holders, the decision will make it easier for rights holders to take action against defendants who, although not the source of infringing content, derive profit from enabling access to it.

This decision is also indicative of the wider crackdown by European and national courts on copyright infringement as a result of actions taken by the audio-visual industry. Recently, the CJEU as part of a long-running dispute between a number of British broadcasters and internet streaming service "TVCatchup", held that the online streaming by third parties of live television broadcasts is, with limited exceptions, contrary to EU law. Closer to home, the High Court earlier this month, granted injunctions to six major film and TV studios directing internet service providers to block access to websites involved in illegal streaming or downloading of films and TV shows, having heard evidence that digital piracy is costing the studios hundreds of millions annually and having serious adverse effects on the indigenous film and television industry here.

For more information on the content of this Insight contact:
Tina English, Associate Solicitor, tina.english@rdj.ie, +353 21 2332824

^[1]Specifically Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (also known as the Copyright Directive and the InfoSoc Directive)
^[2]Case C-466/12 Svensson and Others; Case C-348/13 BestWater International and Case C-160/15 GS Media)