On 8 December 2016, Advocate General Campos Sanchez-Bordona ("AG") issued an opinion on the interpretation of the term "communication to the public" (the "Opinion"). The Opinion finds that a media player integrating illegal hyperlinks to copyright protected works infringes the rights of the right holders of these works.
The Opinion follows a recent judgment of the Court of Justice of the European Union ("ECJ") (Case C 160-15, GS Media v. Sanoma Media Netherlands), in which the ECJ addressed the question of whether hyperlinks ought to be considered as an act of communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society ("InfoSoc Directive") (See VBB on Belgian Business Law, Volume 2016, No. 9, p. 15, available at www.vbb.com).
The Opinion of the AG stems from a reference for a preliminary ruling from the Central Netherlands District Court in proceedings between Stichting Brein (""Brein") – a foundation involved in the protection of copyright and other related rights – and Mr Jack Frederik Wullems ("Wullems"), who developed a multimedia player under the name "Filmspeler". In the multimedia player, Mr Wullems installed add-ons with hyperlinks to websites offering unrestricted access, free of charge, to digital content protected by copyright, without the authorisation of the right holders. End-users can purchase the add-ons which include the hyperlinks to the websites on which unrestricted access is provided to protected works without the consent of the right holders. Brein argued that Mr Wullems, through the sale of the Filmspeler player, was carrying out a "communication to the public" and thus infringed the copyright and related rights of the owners, including associations of producers and importers of image and sound carriers, film producers, film distributors, multimedia producers and publishers.
The Central Netherlands District Court decided to stay the proceedings and refer questions to the ECJ concerning the interpretation of Article 3(1) and Article 5 of the InfoSoc Directive. In particular, the District Court asked the ECJ whether or not there is a communication to the public if the work has been previously published but without the right holder's authorisation and whether there is "lawful use" within the meaning of Article 5(1)(b) InfoSoc Directive if a temporary reproduction is made by an end-user during the streaming of a copyright-protected work from a third-party website where that copyright-protected work is offered without the authorisation of the right holders. Furthermore, the District Court inquired whether the making of a temporary reproduction by an end-user during the streaming of a copyright-protected work from a website where that copyright-protected work is offered without the authorisation of the right holder is contrary to the "three-step test" referred to in Article 5(5) InfoSoc Directive. According to the three-step test, the exceptions and limitations to the right of reproduction only apply (i) in special cases; (ii) which do not conflict with a normal exploitation of the work; and (iii) do not unreasonably prejudice the legitimate interests of the right holder.
In response to the first question, i.e., whether there is a communication to the public in the case at hand, the AG first referred to the points made by the ECJ in the GS Media-case. In GS Media, the ECJ held that (i) the provision of clickable links to protected works must be considered to be "making available" and, therefore, such conduct is an "act of communication"; (ii) an act of communication refers to any transmission of the protected works, irrespective of the technical means or process used; and (iii) there is a rebuttable presumption that the posting of a hyperlink to a work unlawfully published (without the authorisation of the right holders) on the internet amounts to a "communication to the public" within the meaning of Article 3(1) InfoSoc Directive if it is done in pursuit of profit.
Furthermore, GS Media defined two alternative requirements: it is required that the communication is either (i) made by a specific method different from those used before or; failing this, (ii) that the work is distributed to a "new public", deemed to be a public which the right holders did not take into account when they authorised the original (limited) distribution of the work.
The facts underlying GS Media differ from the case at hand, inasmuch as the present case concerns a multimedia player, whereas GS Media related to the publishing of hyperlinks. However, according to the AG, there is no significant difference between posting hyperlinks to protected works on a website and, as in the case at hand, installing hyperlinks in a multimedia device designed specifically for use with the internet.
The AG underlined the indispensable role of the multimedia player: "[i]t is therefore possible to refer to the indispensable role, within the meaning of the case-law, played by Mr Wullems in the communication to the public of protected works; his intervention is performed deliberately and with full knowledge of the consequences entailed. That is clear, in particular, from the examples of the advertising he uses to promote his device." Consequently, the Filmspeler cannot be regarded as a mere "physical facility" within the meaning of Recital 27 of the preamble to the InfoSoc Directive, but must be seen as a type of communication to the public of copyright-protected works that were unlawfully uploaded to the internet.
With regard to the question whether the public warrants the description "new", the AG first pointed out that the requirement of a "new public" must be satisfied where the communication of the protected work is not made by means of a specific method which differs from the methods used up to that time. According to the AG, Mr Wullems' method does not appear to involve any new features but is rather a combination of other, pre-existing methods. In addition, the multimedia player widens the pool of users beyond that intended by the authors of those works, inasmuch as it links both to websites distributing such digital content without authorisation and to sites containing protected works and making them available only to certain users who have to pay for access. Consequently, the AG reaches the conclusion that the requirement of a "new public" is satisfied.
As regards the second question, the AG indicated that there can be no "lawful use" within the meaning of Article 5(1)(b) InfoSoc Directive. According to the AG, the use is not lawful when the end-user has access to works for which the right holders did not allow or restricted the distribution of the digital content concerned and did not authorise unrestricted communication to the public of that content on websites to which the hyperlinks installed in the Filmspeler connect. The AG added that none of the three conditions of the three-step test of Article 5(5) InfoSoc Directive is satisfied.
The AG concluded that the sale of a multimedia player in which hyperlinks to websites are installed which, without the authorisation of the right holders, offer unrestricted access to copyright-protected works, constitutes "communication to the public" and does not qualify for the "lawful use" exception laid down in Article 5(1) InfoSoc Directive. In addition, such a sale does not satisfy the requirements of the three-step test referred to in Article 5(5) InfoSoc Directive.
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