In April 2017, the Court of Justice of the European Union (“CJEU”) ruled that the sale of a multimedia device which enables viewing of audio-visual content that is illegally available on the internet on a television could constitute copyright infringement.

The CJEU’s preliminary ruling concerned the interpretation of Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society (the “Directive”); specifically the interpretation to be given to the Directive’s relevant articles in relation to:

  1. the right of communication to the public of works and right of making available to the public other subject matter (article 3[1]); and
  2. the exceptions and limitations of the coverage of the “reproduction right” (articles 5[1] and 5[3]).

The ruling was handed in the context of a request made in proceedings in the Netherlands between Stichting Brein (a Dutch foundation for the protection of the interests of copyright-holders) and a certain Mr Wullems who is a seller (via the internet) of devices which work as a medium between a source of audio-visual data and a television. Stichting Brein sought to stop him from selling such devices.

It should be noted that the devices were pre-installed with both add-ons whose function is to retrieve content from steaming websites and with open source software that enables the playing of the content via a user-friendly interface. In this respect, in advertising the device, Mr Wullems also stated that the device made it possible, in particular, to watch on television, freely and easily, audiovisual material available on the internet without the consent of the copyright holder.

In front of the relevant referring Dutch court, Stichting Brein argued that by marketing said devices, Mr Wullems was making a “communication to the public” in breach of copyright law. On the other hand, Mr Wullems argued that streaming broadcasts of works protected by copyright from a third-party illegal source, was covered by the exceptions to the coverage of the “reproduction right” listed in the Directive.

The CJEU ruled that the concept of “communication to the public” must be interpreted as covering devices such as the one at issue. Furthermore, the CJEU held that the temporary act of reproduction of streaming illegal content from third party websites on such device cannot be exempted from the right of reproduction.