At the time of
writing, the text of the ruling was not yet available. Now that it is and
having had a chance to read it, it seems to me that – despite its highly
specific factual background (sale of multimedia players enabling free access to
audiovisual works protected by copyright without the consent of the
rightholders) - Filmspeler is a MAJOR copyright decision.
The reason is essentially two-fold:
·
First, because the Court relaxed the notion of what amounts to an
‘indispensable intervention [the judgment does not even contain
a reference to the intervention being ‘indispensable’] for the sake
of the right of communication to the public within Article 3(1) of the InfoSoc Directive. This means – as I also suggested in this article on GS Media written for Common Market Law Review – that a
broader group of defendants might be now regarded as primarily liable for
unauthorized acts of communication to the public.
·
Secondly, because the Court held that streaming unlicensed content
can amount to copyright infringement, on consideration that the mandatory
exemption for temporary copies within Article 5(1) of the InfoSoc Directive
would not be applicable. This paves the way to holding not only those who
provide unlawful streams, but also viewers of
such streams, liable for copyright infringement.
Let’s take a closer look at both
issues.
 |
| Construing the right of communication to the public: yes, but where to start, wonders Bubi? |
The first issue for the Court to
address was whether the concept of ‘communication to the public’ must be
interpreted as covering the sale of a multimedia player on which there are
pre-installed add-ons, available on the internet, containing hyperlinks to
websites - that are freely accessible to the public - on which
copyright-protected works have been made available to the public without the
consent of the rightholders.
As usual, the CJEU recalled at the
outset that the right of communication to the public, which is preventive in
nature, must be interpreted broadly. This is so in order to fulfill one of the
objectives of the InfoSoc Directive, ie to grant authors a ‘high level of
protection’.
Provided that an act of
communication to the public requires (1) an act of communication directed (2)
to a public, what actually amounts to an act of communication to the public
also requires an individual assessment and taking into account
several complementary criteria. These – as the CJEU noted in GS Media – are not autonomous and are
interdependent, and must be applied both individually and in their interaction
with one another.
At para 31 of the Filmspeler decision the Court recalled that among such criteria, there is “the essential role played by the
user. The user makes an act of communication when he intervenes, in full
knowledge of the consequences of his action, to give access to a protected work
to his customers and does so, in particular, where, in the absence of that
intervention, his customers would not, in principle, be able to enjoy the
broadcast work”.
Readers might
remember that in his Opinion in GS Media, Advocate General (AG) Wathelet [here] had
embraced a narrow understanding of what amount to such an ‘essential
role’/’indispensable intervention’. The AG held the view that links posted on a
website that direct to copyright works freely
accessible on another website cannot be classified as an ‘act of communication’:
the
intervention of
the operator of the website that posts the hyperlinks is not indispensable to
the
making available of the works in
question to users. The CJEU did not go as far as AG Wathelet. However, it ‘limited’
liability for linking to unlicensed content to the situations in which [see further here]:
·
The defendant has knowledge that the content linked to is unlicensed and no defence is
available to him;
·
The defendant operates for profit, so that he is presumed to have
knowledge of the lawful/unlawful character of the content linked to, and he
fails to rebut such presumption;
·
The defendant's link circumvents restrictions to access.
 |
| An indispensable intervention to allow access |
Filmspeler is different. Although
possibly a natural evolution of GS Media and preceding case law, it seemingly broadens
the framework of liability. This is essentially because the intervention needed
to fall within the scope of Article 3(1) does not require to be strictly
indispensable: mere facilitation seems enough.
The Court excluded that the sale of
a multimedia player could be regarded as akin to the mere provision of physical
facilities [this
is outside the scope of Article 3(1), as Recital 27 in the preamble to the
InfoSoc Directive clarifies], and concluded that the communication
at hand to would be to a ‘public’.
With regard to the former, the Court
noted that “intervention enabling a direct link to be established between
websites broadcasting counterfeit works and purchasers of the multimedia
player, without which the purchasers would find it difficult to benefit from
those protected works, is quite different from the mere provision of physical
facilities … [I]t is clear … that the
streaming websites at issue in the main proceedings are not readily
identifiable by the public and the majority of them change frequently.” [41]
Turning to the notion of ‘public’,
the court held that there is a ‘public’ if a number (above de minimis) of persons purchases or may acquire the multimedia
player in succession and has an internet connection [44 and 45; so potentially this means ‘anyone’].
The CJEU also noted that in this case the works would be communication to a
‘new public’. [47]
Having established that in the case
at hand there would be a communication to a new public, the CJEU turned to GS
Media, and noted that: (1) the defendant has knowledge that the content linked
to is unlawful [50];
(2) the defendant has a profit-making intention.
Readers
will remember that in GS Media the CJEU
failed to provide guidance on how the profit-making intention criterion should
be assessed: should one consider whether the relevant link is provided with the
intention to make a profit? Or should rather one consider the surrounding
environment to the relevant link, eg whether it is provided on a website that
is operated for profit?
Although
both alternatives appear plausible, consideration of the context in which the
relevant link is provided appears to be more in line with earlier CJEU case law
and, now, Filmspeler.
In both SGAE and FAPL, in fact, the Court considered that the profit-making nature
of the communication was apparent from the fact that the defendants transmitted
the relevant works in their own establishment (hotels and a public house,
respectively) in order to benefit therefrom and to attract customers to whom
the works transmitted are of interest.
Similarly, in Filmspeler the profit-making intention subsists because “the multimedia player is supplied
with a view to making a profit, the price for the multimedia player being paid
in particular to obtain direct access to protected works available on streaming
websites without the consent of the copyright holders … [T]he main attraction
of such a multimedia player for potential purchasers lies precisely in the fact
that add-ons are pre-installed on it which enable users to gain access to sites
on which copyright-protected films are made available without the consent of
the copyright holders.” [51]
 |
| Also known as 'three-step test' |
The next,
topical, issue to address was whether the streaming of unlicensed content could
result in liability infringement of the right of reproduction or could
be, instead, excused under the exemption for temporary copies within Article
5(1) of the InfoSoc Directive.
As
readers know, the exemption within Article 5(1) is subject to five cumulative
conditions that must be interpreted strictly: (1) the act of reproduction is temporary; (2) it is transient or incidental; (3) it is an integral and essential part of a technological process; (4) the sole purpose of that process is to enable a transmission in a
network between third parties by an intermediary or a lawful use of a work or
protected subject matter; and (5) that act does not have any independent economic significance.
In addition, Article 5(1) is subject to the three-step
test in Article 5(5).
The CJEU held that the acts of reproduction at issue do not relate to a lawful use of
copyright works, also because the main attraction of Filmspeler’s player is the
pre-installation of the add-ons. In addition, and as a consequence, the
resulting temporary acts of reproduction are such as to adversely affect the
normal exploitation of those works and causes unreasonable prejudice to the
legitimate interests of the right holder [71].
Comment
As mentioned,
the background proceedings in Filmspeler relate to a very specific factual
background, so I expected that the resulting CJEU decision could have limited
impact.
 |
| Watch out what you're watching! |
As regards the
construction of communication to the public, two main aspects are worth noting.
First, that
facilitation is seemingly akin to intervention, which arguably does not even
need to be ‘indispensable’. This makes me think when the CJEU decides Ziggo, it will follow AG Szpunar [here] and
hold that a subject like The Pirate Bay makes acts of communication to the public, and is primarily liable for copyright infringement.
In the immediate aftermath of the AG Opinion in Ziggo and the CJEU
decision in Filmspeler some commentators have submitted that the CJEU has de facto harmonised
secondary liability, ie an area of copyright that has not been formally harmonized at
the EU level. That might be true, but it is important to note that not all EU
Member States envisage a secondary liability regime for copyright infringement.
The second
aspect is that after Filmspeler it should be clear that one’s own profit-making
intention should be appreciated in relation to the context, ie surrounding
environment, in which the allegedly infringing act takes place, rather than whether the actual
act of infringement is motivated by a profit-making intention. This, as seen from the early national applications of GS Media (particularly in Sweden and Germany), should broaden the situations of prima facie infringement.
Unlawful streaming
Turning to
liability for unlawful streaming, just a few weeks ago the Derbyshire Council Trading Standards in the UK submitted
that streaming unlicensed content would not give rise to liability. After Filmspeler, this does no longer seem true.
Although there might be a discussion as to whether
the acts of reproduction are actually made by the viewer (rather than the site
that hosts the stream), it appears that now the case of unlawful streams is
fully comparable to that of unlawful downloads. In fact, the reasoning of the
CJEU in Filmspeler closely resembles
that in ACI Adam [Katposts here], ie the case concerning whether unlawful downloads of copyright works could be covered by the private copying exception.
In conclusion
All in all, Filmspeler is a very good victory for rightholders: this is so as far as their enforcement efforts are concerned, but also in relation to lobbying work at various levels – notably the EU and the drafting of a ‘value gap’ provision.
All in all, Filmspeler is a very good victory for rightholders: this is so as far as their enforcement efforts are concerned, but also in relation to lobbying work at various levels – notably the EU and the drafting of a ‘value gap’ provision.
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