European Union: Court Of Justice Of European Union Holds That Online Sharing Platform "The Pirate Bay" Is Making Acts Of Communication To The Public

Last Updated: 11 August 2017
Article by Thibaut D'hulst

Most Read Contributor in Belgium, August 2018

On 14 June 2017, the Court of Justice of the European Union (the "ECJ") handed down a preliminary ruling in case C-610/15 with regard to the interpretation of the concept of "communication to the public" within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of specific aspects of copyright and related rights in the information society (the "Infosoc Directive").

The preliminary ruling stems from a dispute between, on one hand, Stichting Brein, a Dutch foundation which safeguards the interests of copyright holders ("Brein") and, on the other hand, Ziggo BV ("Ziggo") and XS4ALL Internet BV ("XS4ALL"), two internet access providers. Brein requested before the Dutch courts that Ziggo and XS4ALL be ordered to block the domain names and IP addresses of the notorious online sharing platform "The Pirate Bay" ("TPB"). The case went up to the Supreme Court of the Netherlands (the "Court"). The Court first decided that TPB had made protected works available to the public without the right holders' consent. The Court then added that subscribers to Ziggo and XS4ALL had also made protected works available, through the online platform TPB, without the right holders' consent, which meant that they infringed the copyright and related rights of these right holders. Nevertheless, the Court referred a request for a preliminary ruling to the ECJ asking whether the concept of "communication to the public" should be interpreted as including the making available and management of an internet 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.

The ECJ first recalled that the concept of "communication to the public" must be interpreted broadly and that there are two cumulative criteria, namely: (i) an "act of communication" of a work; and (ii) the communication of that work to a "(new) public".

Act of Communication

In order to determine whether the first requirement was met, the ECJ applied the complementary criteria that it had developed in Stichting Brein v Jack Frederik Wullems, i.e., the importance of the role played by the user and the deliberate nature of his intervention (See, VBB on Belgian Business Law, Volume 2017, No. 4, p. 13, available at www.vbb.com). Then, making reference to its judgment in Svensson and Others, the ECJ stated 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" (See, VBB on Belgian Business Law, Volume 2014, No. 2, p. 6, available at www.vbb.com).

Applying these principles to the case at hand, the ECJ first found that users of TPB were given access to copyright-protected works at all times and in all places. The ECJ then decided that TPB could not be considered as merely providing physical facilities for enabling or making a communication. It indexed and filtered torrent files which allowed users of the platform to locate and download those works and to share them within the peer-to-peer network. Consequently, without the operators of TPB, users could not share the works as easily. Hence, although TPB did not itself host content, by making available and managing an online sharing platform, the operators of TPB intervened, in full knowledge of the consequences of their conduct, to provide access to protected works. The ECJ therefore found that TPB performed an essential role in making available copyright-protected works and that there was an "act of communication".

Communication to the Public

With regard to the second criterion, the ECJ found that a large number of subscribers to Ziggo and XS4ALL (tens of millions of users) had downloaded media files using TPB and that the de minimis threshold was therefore met. The ECJ held that the operators of TPB could not have been unaware that their platform provided access to works published without the consent of the right holders. Therefore, the ECJ concluded that the protected works had been communicated to users who had not been taken into account by the right holders and therefore constituted a "new public."

Lastly, the ECJ held that the making available and management of TPB was carried out by its operators with the purpose of making a profit since the platform generates considerable advertising revenues.

In the light of the above, the ECJ concluded that the concept of "communication to the public" also includes the making available and management, on the internet, of a sharing platform which, by means of indexation of metadata referring to protected works and the provision of a search engine, allows its users to locate those works and share them within a peer-to-peer network.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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