This case was a reference from the Dutch court in relation to the Filmspeler multimedia player.
The Filmspeler multimedia player is a device which acts as a medium between a source of visual and/or sound data and a television screen. The player included software which made it possible to play files, including third party add-ons which were available on the internet which linked to website on which protected works are made available without the consent of the copyright holders.
In advertising the filmspeler device, Mr Wullems had stated that the player made is possible to freely and easily watch audio-visual material available on the internet without the consent of the copyright holders.
Before the referring court, Stichting Brein (a foundation for the protection of the interests of copyright holders) submitted that by marketing the device, Mr Wullems had made a “communication to the public” in breach of the domestic copyright legislation. Stichting Brein also submitted that those provisions must be interpreted in the light of Article 3(1) of Directive 2001/29 (the “Directive”) which provides:
“Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.”
Mr Wullems submitted that streaming broadcasts of protected works from an illegal source was covered by the exception listed in the domestic legislation on copyright, which must be interpreted in the light of Article 5(1) of the Directive.
The reference can be summarised as two discrete issues:
- Is there a “communication to the public” in accordance with Article 3(1) of the Directive when someone sells a device which includes add-ons containing hyperlinks to websites where protected works are made directly available without the consent of the right holders?
- If a temporary reproduction is made by an end user during the streaming of a protected work from a third party website (where the protected work is offered without the consent of the right holder), should Article 5 of the Directive be interpreted as meaning that there is no lawful use within the meaning of Article 5(1)(b)?
1. “Communication to the public”
The Court held that authors have a right which allows them to intervene, prohibiting potential users of their work from making a “communication to the public”. Article 3 of the Directive does not define the concept of a “communication to the public”, and its meaning and scope must be determined broadly, and in the light of the objectives pursued by the Directive.
In a press release, the court said that “the CJEU has already held that the availability, on a website, of clickable links to protected works published without any access to restrictions on another website offers users of the first website direct access to those works…”.
Accordingly, the CJEU held that the sale of a device, such as the one in question, is a “communication to the public” within the meaning of the Directive, and the sale of such a device could therefore constitute and infringement of copyright.
2. Temporary acts of reproduction
Under Article 5(1) of the Directive, an act of reproduction is only exempt from the right of reproduction if five conditions are satisfied. If any one of the five conditions is not satisfied the act of reproduction will not be exempt. The Court has held that the conditions are to be applied strictly and the exemption is only to be applied in certain special cases.
One of the conditions is that the sole purpose of the process in question must be to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or protected subjected matter.
Considering the content of the advertisements for Filmspeler, and on the basis that the main attraction of the media player was the pre-installed add-ons mentioned above, the Court held that the purchasers of the player deliberately, and in full knowledge, accessed a free and unauthorised offer of protected works. Accordingly, the sole purpose was not to enable the lawful use of a work or protected subject matter.
The conditions in Article 5(1) of the Directive were therefore not satisfied, and the Court held that temporary acts of reproduction of protected works on the Filmspeler media player, obtained by streaming a third party website which offered the works without the consent of the copyright holder, cannot be exempted from the right of reproduction.