The Authors' Take - Stichting Brein v Jack Frederik Wullems (Filmspeler)

CJEU applies right of communication to the public to sale of multimedia players

by Karin Cederlund and Nedim Malovic

Sandart&Partners Advokatbyrå KB

In a 2017 decision (Case C‑527/15, Stichting Brein v Jack Frederik Wullems (Filmspeler)), the Court of Justice of the European Union (CJEU) held that the sale of a multimedia player, with pre-loaded hyperlinks to pirate websites, constitutes a communication to the public, within the meaning of Article 3(1) of Directive 2001/29/EC (InfoSoc Directive). The CJEU also excluded that consumers’ streaming from illegal sources would be exempted from the reproduction right under Article 5(1) of the InfoSoc Directive (temporary copies exemption).

Communication to the public

The CJEU referred to its previous case law and held that an act of communication to the public under Article 3(1) of the InfoSoc Directive requires the fulfillment of two conditions: (1) an 'act of communication' (2) directed to a 'public'. The CJEU concluded that the sale of the multimedia player at issue must be considered as a ‘communication’. The communication would encompass all persons purchasing the media player and having an internet connection. According to the CJEU, those persons could access the protected works at the same time, by streaming the works on the internet. Hence, the communication would be aimed at an indeterminate number of potential recipients and involve a large number of persons. It would be therefore a communication to a ‘public’ within the meaning of Article 3(1) of the InfoSoc Directive.

When assessing whether the works are communicated to a ‘new’ public, the CJEU recalled the presumption adopted in Case C-160/15, GS Media, i.e. the user/defendant’s profit making intention. The court noted that multimedia players were supplied with a view to generate a profit, the price for the players being paid to obtain direct access to protected works available on streaming websites without the consent of the copyright holder. Hence, the provider of the device must be presumed to have knowledge of the unlicensed character of the works accessed this way.

Temporary copies exception under Article 5(1) of the InfoSoc Directive

Among the conditions of this exemption there is that the sole purpose of the act of reproduction is to enable transmission in a network between third parties by an intermediary or a lawful use of a protected work. 

According to the CJEU, the reproduction acts at issue (streaming by users of the multimedia player) would not seek to enable transmission in a network, nor the lawful use of a work. Hence, unlicensed streaming of copyright content could not fall within the scope of Article 5(1). Holding otherwise would also conflict with the three-step test in Article 5(5) of the InfoSoc Directive. 

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP).]