Filmspeler judgment strengthens position of rights holders in EU

28 April 2017

Emily Gittins

Filmspeler is the latest in a long run of copyright cases, following Svensson and GS Media regarding a "communication to the public".

Stichting Brein, the Dutch anti-piracy organisation, brought this action against Jack Frederik Wullems, owner of the website www.filmspeler.nl which sells a multimedia player called the filmspeler.

The filmspeler connects a source of visual and/or sound data to a television screen. When connected to the internet, a user is able to stream the image and sound from a web portal or website to their screen.

Mr Wullems installed open source software which integrated (without influence from him) add-ons containing hyperlinks directing users to streaming websites controlled by third parties. Thus, the filmspeler made it possible for users to give access to audiovisual material without the consent of copyright holders.

Mr Wullems used the following blurb in his marketing of the filmspeler:

"Never again pay for films, series, sport, directly available without advertisements and waiting time (no subscription fees, plug and play). Netflix is now past tense! Want to watch free films, series, sport without having to pay? Who doesn’t?! Never have to go to the cinema again thanks to our optimised XBMC software. Free HD films and series, including films recently shown in cinemas, thanks to XBMC."

Stictching Brien sued Wullems for copyright infringement before the District Court of Central Netherlands claiming that the sale of the filmspeler constituted a "communication to the public". The District Court sought guidance from the CJEU on a number of questions relating to: 1) whether the sale of a multimedia player on which there are add-ons installed containing hyperlinks giving the purchaser access to websites containing copyright-protected works without the consent of the copyright holder constituted a "communication to the public" within Art 3(1) of the InfoSoc Directive; and 2) whether the exemption for temporary copies under Art 5(1) of the InfoSoc Directive was applicable.

Communication to the public

What constitutes a "communication to the public" has been addressed in a number of recent cases in particular in relation to hyperlinking in Svensson and GS Media. An act of communication to the public requires there to be 1) an act of communication – this is more than just making available the work, which is 2) to the "public".

In GS Media the following three additional criteria were identified by the CJEU to be applied when assessing whether there has been a “communication to the public” which were said to be complementary and interdependent:

  1. There must be an "intervention" by the defendant, in full knowledge of the consequences of its action, to give access to a protected work to its customers. The intervention must be such that without it, the defendant’s customers would not, in principle, be able to enjoy the broadcast work. The indispensable and deliberate nature of the intervention was emphasised.
  2. "The "public" refers to an indeterminate number of potential viewers and implies, moreover, a fairly large number of people." The "public" must be new public meaning that the work must be communicated by a technical means different from that previously used, or a new public not taken into account when authorising the initial communication.
  3. The communication must be of a profit making nature.

In GS Media the CJEU found that posting hyperlinks directing users to copyright works freely accessible on another website amounted an "act of communication".

In the Filmspler the hyperlinks are provided more indirectly than in GS Media being contained in add-ons integrated into software. However, the CJEU held that the sale of the filmspeler did amount to a "communication". In doing so it noted that Mr Wullems had intentionally installed the add-ons and thus the sale of the filmspeler was made in full knowledge of the fact that the preinstalled add-ons containing hyperlinks gave access to works published illegally. It was also noted that Mr Wullems advertised that the filmspeler made it possible to watch audiovisual material available on the internet without the consent of copyright holders and that the sources of the content were not readily identifiable without the use of the player.

The CJEU placed emphasis on the fact that the filmspeler was sold with the intention of making a profit. The court made the distinction between the provision of the filmspeler which allowed the purchaser to benefit from protect works different from the mere provision of physical facilities.

Additionally, the communication was held to be to the "public" because it covered all people who could potentially acquire the filmspeler and have an internet connection and thus may access the protected works at the same time. This was held to be an indeterminate number of potential recipients involving a large number of people.

Temporary copies

The court considered the five cumulative conditions and focussed on whether the filmspeler was intended to enable users to lawfully access work. Since the main draw to the filmspeler was the pre-installed add-ons, it did not attract the defence.

Comment

The Filmspeler decision is good news for rights holders since it widens the communication to the public right to situations where the potential infringer is merely providing physical facilities for enabling communication rather than transmitting the communication itself. Having said that, there is still a knowledge hurdle to the right since that the defendant's invention was "in full knowledge", taking into account that Mr Wullem's marketing was clearly encouraging infringement. How significant this hurdle is, is not yet clear.

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