As an advertising message, “Want to watch free films, series, sport without having to pay? Who doesn’t?!” was clearly too good to be true. In the UK, sales of media players incorporating pre-installed add-ons linking to websites giving access to unauthorised content have attracted the attention of criminal prosecution authorities in recent months, with a landmark case due to be heard this month. Now, the European Court of Justice (CJEU) has decided that the sale of such ‘fully-loaded’ devices amounts to a communication to the public and therefore is likely to infringe copyright. Further, users who unlawfully stream copyright content will be unable to rely upon the temporary reproduction defence.
Rights owners in the creative industries will welcome the decision, which demonstrates the CJEU is prepared to adopt an extremely broad interpretation of the ‘communication to the public’ right – an interpretation however that the European Commission had argued would alter and jeopardise the fair balance between the rights and interests of all parties involved.
Mr Wullems sold a physical media player called ‘filmspeler’ (Movieplayer) which, once connected to the internet and a TV screen, allowed users to stream unlawful content from websites. Mr Wullems had pre-installed add-ons containing hyperlinks which, once clicked on, directed users to sites which allowed them to illegally stream movies, TV shows and live sports. The Dutch anti-piracy organisation, Stichting Brein, brought proceedings in The Netherlands, and the Dutch Court referred various questions to the CJEU.
The InfoSoc Directive gives right holders exclusive rights in relation to the reproduction and communication to the public of their works. For the reproduction right, however, there is a defence for temporary acts of reproduction, subject to certain criteria.
Sale of media player with add-ons is a communication to the public
The CJEU has considered the communication to the public right in a series of cases and has given it a broad interpretation. There are two cumulative criteria that must be established: an ‘act of communication’ of a work and the communication of that work to the public.
The CJEU concluded that a sale of the media player was an act of communication of a copyright work to the public. It referred to the several complementary criteria that must be considered:
- The essential role played by the user – the user makes an act of communication when he intervenes, in full knowledge of the consequences of his action, to give access to a protected work to his customers and does so, in particular, where in the absence of that intervention, customers would not be able to enjoy the broadcast work.
- The concept of the ‘public’ refers to an indeterminate number of potential viewers, and implies a fairly large number.
- A protected work must be communicated using specific technical means which are different from those previously used or to a ‘new public’, i.e., one that was not already taken into account by the copyright owner when they authorised the initial communication.
- The profit-making nature of a communication is relevant.
It also referred to and applied its decisions concerning communication to the public via hyperlinks (Svensson, Bestwater, GS Media), extending that approach from the provision of clickable links on a website to a situation where links are provided on a media player.
The CJEU rejected the argument that the Defendant was merely providing physical facilities for enabling or making a communication. In full knowledge of the consequences of his conduct, he had pre-installed add-ons that specifically enabled purchasers to have access to unauthorised works on streaming websites and to watch them on TV. His intervention enabled a direct link to be established, without which the purchasers would find it difficult to benefit from the protected works. It was also particularly relevant that the streaming websites were not readily identifiable by the public and the majority of them changed frequently.
The ‘filmspeler’ device was aimed at an indeterminate number of potential recipients and involved a large number of people. The works were communicated to a new public, again applying the hyperlinking case law: the sale of the ‘filmspeler’ device was in full knowledge that the add-ons gave access to illegally published works, and was supplied with a view to making profit.
Temporary acts of reproduction defence not available for purchasers
The CJEU also considered whether users would be able to rely upon the temporary reproduction defence in relation to copies that were made on the device when they streamed content using it. In the earlier case of FAPL v Murphy, the CJEU had decided that ephemeral acts of reproduction by television viewers fell within the defence as the sole purpose of those acts was to enable a ‘lawful use’ of the works. However, here, the CJEU concluded that the Defendant’s advertising confirmed that buyers of the filmspeler device were deliberately and in full knowledge accessing unauthorised works, which adversely affected the normal exploitation of those works and caused unreasonable prejudice to the right holder’s legitimate interests. Accordingly, the defence was not available.
The sale of such devices without the add-ons does not, of course, infringe copyright. However, steps are being taken in a number of areas to deal with sales of ‘fully loaded’ devices containing apps and add-ons allowing access to unlawful content, with Amazon and eBay recently having issued warnings in relation to sales of such pre-configured devices. The Government has also issued a consultation on illicit IPTV streaming devices, focussing on specific copyright offences and general criminal offences. The recently enacted Digital Economy Act 2017 contains a measure which, when in force, will extend the maximum sentence for the criminal offence of communicating copyright works to the public to ten years (from two years), despite significant objections.