Mediaplayers and streaming: AG Campos Sánchez-Bordona in Filmspeler proposes broad interpretation of notion of 'indispensable intervention'

A little more than a year ago this blog reported that a new reference for a preliminary ruling to the Court of Justice of the European Union (CJEU) had been filed by the Rechtbank Midden-Nederland (District Court, Central Netherlands, Netherlands). 

Background

This reference [Stichting Brein v Jack Frederik Wullems, acting under the name of Filmspeler, C-527/15] had arisen in the context of litigation between Dutch anti-piracy organisation Stichting Brein and Jack Frederik Wullems over the sale, by the latter and through - among other things - his site www.filmspeler.nl, of various models of a multimedia player under the name ‘filmspeler’. 

Filmspeler is a player for connecting a source of image and/or sound signals to a television screen. If the multimedia player is connected to the internet, on the one hand, and to a user’s screen (for example, a television screen), on the other, the user is able to stream the image and the sound from a web portal or website.

Among other things, Wullems installed add-ons [over which he had no influence] containing hyperlinks which, if clicked, would redirect the user to streaming websites, controlled by third parties, on which films, television series and (live) sporting events could be enjoyed free of charge, with or without the authorisation of relevant rightholders. 

Stichting Brein sued Wullems for copyright infringement before the District Court of Central Netherlands, claiming that through the sale of the Filmspeler player, Wullems was carrying out a ‘communication to the public’ contrary to Dutch copyright law.

The District Court held the view that the relevant Dutch provisions should be interpreted in light of Article 3 of the InfoSoc Directive but considered that: 

(1) CJEU case law existing at that time [notably Svensson and BestWater] would not provide criteria sufficient for reaching a decision in this case; and 

(2) it was unclear whether the defence for temporary copies, pursuant to the Dutch transposition of Article 5(1) of the InfoSoc Directive, would be applicable to relevant streaming activities.

The District Court decided therefore to stay the proceedings and seek guidance from the CJEU as to the following:

‘1)      Must Article 3(1) of the [InfoSoc] Directive be interpreted as meaning that there is “a communication to the public” within the meaning of that provision, when someone sells a product (mediaplayer) in which he has installed add-ons containing hyperlinks to websites on which copyright-protected works, such as films, series and live broadcasts are made directly accessible, without the authorisation of the right holders?

2)      Does it make any difference:

-      whether the copyright-protected works as a whole have not previously been published on the internet or have been published only through subscriptions with the authorisation of the right holder?

-      whether the add-ons containing hyperlinks to websites on which copyright-protected works are made directly accessible without the authorisation of the right holders are freely available and can also be installed in the mediaplayer by the users themselves?

-      whether the websites and thus the copyright-protected works made accessible thereon — without the authorisation of the right holders — can also be accessed by the public without the mediaplayer?

3)      Should Article 5 of the [InfoSoc] Directive (Directive 2001/29/EC) be interpreted as meaning that there is no “lawful use” within the meaning of Article 5(1)(b) of that 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 holder(s)?

4)      If the answer to the third question is in the negative, is 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(s) then contrary to the “three-step test” referred to in Article 5(5) of the [InfoSoc] Directive (Directive 2001/29/EC)?’

Today's AG Opinion

This morning Advocate General (AG) Manuel Campos Sánchez-Bordona delivered his Opinion, and held the view that:

(1) the sale of a multimedia player of the kind at issue in the main proceedings constitutes “communication to the public” within the meaning of Article 3(1) of the InfoSoc Directive [note (para 33) that the submission of the Commission is that in the case at hand Article 3(1) would not be triggered because what Wullems did was to provide a mere ‘physical facility’ that would enable, but would not in itself be, a communication], and 

(2) cannot be covered by the exception laid down in Article 5(1) therein, inasmuch as it does not fall within the definition of “lawful use” in subparagraph b) of that provision and, in any case, does not fulfil the conditions for application of the three-step test in Article 5(5).

Communication to the public

The AG noted at the outset [para 3] how the first and second questions referred by the Dutch court are, in some respects, the same as those which gave rise to the judgment in GS Media [Katposts here]. However, according to the referring court, in this case the factual difference is that - unlike the background proceedings in GS Media - no hyperlinks were posted on the defendant's own website, but rather add-ons with hyperlinks were installed in the mediaplayer offered by him. 

Despite this, according to the AG the CJEU judgment in GS Media is applicable to the case at hand [para 4]. 

Interestingly enough, at para 41 the AG also warned against the risks of departing from previous CJEU decisions [is this why not even AG Wathelet in his GS Media Opinion - here - dared to say that adopting his view would mean departing from the CJEU conclusions in Svensson?]:

"The requirement of certainty in the application of the law obliges the court, if not to apply the stare decisis in absolute terms [formally there is no system of binding precedent at the CJEU level], then to take care to follow the decisions it has itself, after mature reflection, previously adopted in relation to a given legal problem. To my mind, that is what must happen with regard to the case-law laid down (or confirmed) in the judgment in GS Media regarding the relationship between hyperlinks and communication to the public in the context of Directive 2001/29."

Having said so, the AG recalled the cornerstones of GS Media, ie that [paras 42-43]: 

"(a) the provision of clickable links to protected works must be considered to be ‘making available’ and, therefore, such conduct is an ‘act of communication’; (b) that concept refers to any transmission of the protected works, irrespective of the technical means or process used, and (c) 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) of Directive 2001/79, if it is done in pursuit of profit.

In the same vein, the Court has held that the concept of communication to the public of a protected work requires either the communication to be made by a specific method different from those used before or, failing this, the work to be 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."

According to the AG [para 44] "it is not difficult to conclude that the case-law laid down in the judgment in GS Media, regarding the relationship between hyperlinks and the concept of communication to the public, is applicable" to the case at hand.

This said, he considered the material difference that, unlike in GS Media, Wullems did not directly provide any hyperlinks to protected works, but rather offered for sale a multimedia player with add-ons containing such hyperlinks.

Rejecting the Commission's "reductionist" [in the AG's view: see para 49] submission that Wullems’ intervention was ‘not crucial’ and that he merely ‘enabled’ the public to have access to content that can be downloaded from other websites, the AG held [paras 49-51] that:

"Marketing of the filmspeler goes beyond the mere sale of a technical accessory ... In that device, Mr Wullems provides, inseparably, the necessary hardware and software which are aimed directly at enabling purchasers to access copyright-protected works on the internet without the consent of right holders. Provision of that immediate access to an unspecified public is part of the added value of the service supplied by Mr Wullems, for which he receives the price paid — or at least a substantial part thereof — in return for the mediaplayer ... [T]here is no significant difference between posting hyperlinks to protected works on a website and, as in the present case, installing hyperlinks in a multimedia device designed specifically for use with the internet (in particular, so that, through it, users are able to access straightforwardly, directly and immediately, digital content made available without the consent of the authors). The provision of links to that protected content, the making available of that content to the public, is a feature common to both types of conduct, and its apparently incidental or ancillary nature cannot conceal the fact that the activities concerned are aimed at ensuring that anyone may, merely by clicking on the hyperlink, enjoy the protected works."

AG Campos Sánchez-Bordona

And here's the crucial bit [paras 53-54]: 

"It 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. 

In short, the filmspeler cannot be regarded as a mere ‘physical facility’ within the meaning of recital 27 in the preamble to Directive 2001/29, but rather as a type of communication to the public of copyright-protected works that have previously been unlawfully uploaded to the internet. Mr Wullems’ conduct involving the installation of hyperlinks to those works in his devices, which he clearly does in pursuit of a profit and in awareness of its unlawfulness, assists purchasers of the filmspeler to avoid the consideration payable for lawful access to those works, that is, payment of the remuneration due to the right holders which usually takes the form of a membership fee, subscription or another pay-per-view method."

Having said so, the AG turned to consideration of whether the public targeted by Wullems's act of communication would be also 'new'. The AG answered in the affirmative, also noting [para 58] that "the filmspeler entails an undeniable advantage for a significant portion of that public: persons not particularly skilled at using the internet to find illegal sites for watching films and televisions series, amongst other digital content. That portion of the public might prefer the user-friendly menu which the filmspeler displays on its screen to the sometimes laborious search for websites offering such content."

Temporary copies defence?

Turning to the third and fourth questions the AG considered that, in relation to Article 5(1) of the InfoSoc Directive, the condition that would not be satisfied is the one relating to the ‘lawful use’ of a protected work [para 65]. The AG added [para 71] that 

"lawfulness, in objective terms, depends rather on the authorisation of the right holder or his licensee. Excusable ignorance or reasonable lack of knowledge, on the part of the end user, of the fact that no such authorisation exists could, undoubtedly, exempt the user from liability, but it does not exclude — I repeat, in strictly objective terms — the unlawfulness of the ‘use’ referred to in Article 5(1) of Directive 2001/29."

Another
indispensable intervention

It follows [para 72] that, since the protected works to which the hyperlinks installed on Mr Wullems’ filmspeler lead were not authorised by the copyright holders, streaming by an end user by means of that device would not be consistent with ‘lawful use’ for the purposes of Article 5(1)(b) of the InfoSoc Directive.

Three-step test

The AG also noted that, even admitting that use of Wullems's device was covered by Article 5(1), none of the conditions in the three-step test within Article 5(5) of the InfoSoc Directive would be satisfied. 

Also recalling the CJEU decision in ACI Adam [Katposts here], the AG noted how "it would run counter to Directive 2001/29 to allow indiscriminate or widespread reproductions from unlawful sources, or reproductions made by circumventing the access limits. Accepting the validity of such reproductions would be tantamount to promoting the circulation of pirated digital content and, to that extent, would seriously prejudice the protection of copyright and create favourable conditions for unlawful methods of distribution, to the detriment of the proper functioning of the internal market. [para 77]

Comment

Today's AG Opinion is good news for rightholders, especially because the AG appeared to construe the notion of 'indispensable intervention' fairly broadly and in a way that goes beyond a 'merely direct' indispensable intervention [as instead, in my view, the CJEU had done in Reha Training - here - and GS Media].

We shall see if the CJEU follows the AG Opinion: if this happens - and with the same nuances - then Filmspeler is going to be an additional step towards an even broader interpretation of what the elusive concept of 'communication to the public' entails.