The Advocate General (AG) has opined that the sale of media players incorporating hyperlinks to unauthorised content infringes copyright and that a user who views streamed infringing movies is not protected from copyright infringement by the temporary copies exception in the Copyright Directive.
Communication to the public
Authors have the exclusive right to authorise or prohibit any communication to the public of their works by wire or wireless means (Article 3(1), the Directive) (Article 3(1)).
There is a rebuttable presumption that a person who, in pursuit of financial gain, posts on a website hyperlinks to protected works freely available on another website without the rights holder's consent, knew of the protected nature of the work and of the possibility that publication of those works on the other website was illegal (GS Media BV v Sanoma Media Netherlands BV and others, see News brief "Hyperlinking to unauthorised content: ECJ imposes conditions", www.practicallaw.com/2-633-7919).
Temporary copies exception
Article 5(1) of the Copyright Directive (2001/29/EC) (the Directive) (Article 5(1)) permits, as an exception to the reproduction right, temporary acts of reproduction of copyright works, which are transient or incidental and an integral and essential part of a technological process, for various purposes, including for the sole purpose of enabling a lawful use of a copyright work. This exception only applies in special cases which do not conflict with a normal exploitation of the work or other subject matter, and do not unreasonably prejudice the legitimate interests of the rights-holder (Article 5(5), the Directive) (Article 5(5)).
W offered to the public various films via multimedia players. W installed add-ons in the multimedia player containing hyperlinks which redirected the user to streaming websites controlled by third parties, on which films, television series and live sporting events could be enjoyed free of charge. Some links led to copyright-protected content without the rights holder's consent.
W advertised using promotional slogans such as "Want to watch free films, series, sport without having to pay? Who doesn't?!" and "Never again pay for films, series, sport".
B sued W in the Netherlands seeking an injunction prohibiting him from selling the devices and from offering hyperlinks which provided users with unlawful access to copyright-protected works.
The Dutch court referred to the European Court of Justice the question of how the case differed from GS Media, since this case concerned the sale of a multimedia player rather than the provision of hyperlinks on W’s website as in GS Media.
It also referred a question as to whether the user of the device would be protected from infringing the reproduction right when viewing infringing streamed movies by the 'temporary copies' exception in Article 5(1) of the Directive.
Communication to the public
The AG opined that the sale of the multimedia player, in which (according to the AG) W had installed hyperlinks to websites that, without the authorisation of the copyright holder, offered unrestricted access to copyright-protected works, constituted a "communication to the public" within Article 3(1).
Marketing went beyond the mere sale of a technical accessory which merely provided physical facilities for enabling or making a communication. W’s device provided, inseparably, the necessary hardware and software aimed directly at enabling buyers to access copyright-protected works on the internet without rights holders' consent. That immediate access to an unspecified public was part of the added value of the service supplied by W, for which he received a substantial part of the price paid for the device.
There was no significant difference between posting hyperlinks to protected works on a website and installing hyperlinks in a multimedia device designed specifically for use with the internet. Both types of activity were aimed at ensuring that anyone could, merely by clicking on the hyperlink, enjoy the protected works.
Whatever the method or technical process by which they were installed, hyperlinks enabled third parties to access digital content which has already been uploaded, here unlawfully, to the internet. This increased the range of potential users who were provided with a functionality involving the prior selection of websites that allowed digital content to be viewed free of charge.
So, W played an indispensable role in the communication to the public of protected works. His intervention was performed deliberately and with full knowledge of the consequences entailed, as was shown by the advertising W used to promote his device. The device could not be regarded as a mere physical facility, but rather as a communication to the public of copyright-protected works that had previously been unlawfully uploaded to the internet.
The requirement of a "new public" was satisfied because the multimedia player sold by W widened the pool of users beyond that intended by the authors of those works, by linking both to websites distributing such digital content without authorisation and to sites containing protected works and making them available only to certain users who had to pay for access. Also, the device gave an advantage to a significant portion of that public: persons not particularly skilled at using the internet to find illegal sites for watching films and televisions series.
Temporary copies exception
Since the protected works to which the hyperlinks installed on W's device led were not authorised by the rights-holders, streaming by an end user by means of that device was not consistent with lawful use for the purposes of Article 5(1).
Article 5(5) was also not satisfied here. These were not special cases, as W's device would give rise to countless downloads of copyright works without rights holders' consent. Streaming of protected digital content with right holders' consent also conflicted with the normal exploitation of the work, and unreasonably prejudiced rights holders' legitimate interests: a person who streamed protected films and series could not be likened to a person who surfed the internet. When an internet user viewed protected works on his screen through streaming it was not normal exploitation of the work, necessitated by the technology required to navigate the internet, but rather an abnormal act reflecting the user's deliberate aim of accessing digital content without payment, by means of W's device.
This opinion provides insight into how the criteria set out in GS Media, about when hyperlinks to unauthorised content would infringe copyright, might be applied in practice. It will be interesting to see whether the ECJ follows the AG’s approach, which arguably is pushing the boundaries of communication to the public to cover what would normally be contributory liability.
Here W installed the add-ons containing the hyperlinks himself, and advertised the media players as suitable for those who wanted free films without having to pay. It is not clear if the same decision would be reached where a multimedia player had no direct connection to transmission of copyright works, and could more clearly be said to be a mere "physical facility" for enabling or making a communication.
Case: Stichting Brein v Wullems, acting under the name of Filmspeler C-5237/15.
First published in the January & February 2017 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.