What can the possible implications of the CJEU Pirate Bay decision be? A new paper

As this blog reported, on 14 June last the Court of Justice of the European Union (CJEU) issued its much-awaited judgment in Stichting Brein v Ziggo BV and XS4All Internet BV, C-610/15 (the ‘Pirate Bay’ case).

There, the Court developed further its construction of the right of communication to the public within Article 3(1) of the InfoSoc Directive, and clarified under what conditions the operators of an unlicensed online file-sharing platform are liable for copyright infringement.

The CJEU judgment builds upon the earlier Opinion of Advocate General (AG) Szpunar in the same case [reported here], yet goes beyond it. This is notably so with regard to the consideration of the subjective element (knowledge) of the operators of an online platform making available copyright content. Unlike AG Szpunar, the Court did not refer liability only to situations in which the operators of an online platform have acquired actual knowledge of third-party infringements, but also included situations of constructive knowledge (‘could not be unaware’) and, possibly, even more.

Overall, the CJEU decision is not limited to egregious scenarios like the one of The Pirate Bay: the Court’s findings are applicable to different types of online platforms, as well as operators with different degrees of knowledge of infringements committed by users of their services.

In my view the judgment is expected to have substantial implications for future cases (including at the level of individual Member States), and overall prompts a broader reflection on issues such as the interplay between primary and secondary liability for copyright infringement, applicability of the safe harbour regime within the E-Commerce Directive, as well as the current EU copyright reform debate, notably the so called value gap proposal within Article 13 of the draft Directive on Copyright in the Digital Single Market.

Further to a request of the International Federation of the Phonographic Industry (IFPI), I prepared a paper that would explore the possible implications of the judgment. The paper is going to be published as an article in the European Intellectual Property Review later this year. In the meantime, you can find a pre-edited version here.