Linking online content generally involves the publication of a selectable connection (e.g. a clickable link) from one web page to another web page and includes “framing” (i.e. enabling a user to view a website through a frame on the linking website).

Streaming has advanced to deliver media content to computers, mobile devices and televisions without the need to download a media file. This has resulted in the development of media players with pre-installed add-ons containing links to websites streaming copyright works without the consent of the copyright holder.

In the face of such technological advances, the Courts have considered whether copyright is infringed by providing links to copyright works and/or accessing copyright works via links.

On 26 April 2017, the Court of Justice of the European Union (CJEU) handed down its latest judgment on such matters in Filmspieler.1 Filmspieler concerned the supply and use of multimedia players with pre-installed links to unauthorised streams of copyright works. The CJEU held that the supply of these media players infringed a copyright holder’s communication right and also stated that users of unlawful streams may also be liable for copyright infringement by infringing the copyright holder’s reproduction right.

Before tackling the CJEU’s decision in Filmspieler, it is worth recapping as to the legal developments aimed at addressing copyright issues arising from the growth of the internet, and linking in particular.

The Information Society Directive2 (the Directive)

Changes to copyright law were required so as to provide copyright holders with adequate protection so as to incentivise creativity in the digital age. The Directive was a key part of copyright law development and sought to harmonise the laws of the Member States of the EU in dealing with, among other things, online copyright infringement. The Directive sought to implement a “high level of protection”.3

Among other things, the Directive created the communication right,4 namely the right to communicate a copyright work to the public. According to the Directive’s aim of a high level of protection, the communication right is to be “understood in a broad sense”,5 save that the “mere provision of physical facilities for enabling or making a communication does not in itself amount to a communication”.6 The communication right was implemented into English law by amending section 20 of the Copyright, Designs and Patents Act 1988 (CDPA 88).7

The Directive also required Member States to provide a copyright holder with a reproduction right,8 namely the right to copy a copyright work. This resulted in no substantive amendments to the CDPA 88 but the relevant sections of the CDPA must now be read in accordance with the Directive.9

A copyright holder therefore has the exclusive right to authorise or prohibit:

  • any direct or indirect, temporary or permanent, reproduction of the copyright work in whole or part, by any means and in any form; and
  • any communication to the public of their copyright work.

Doing either of the above acts without the copyright holder’s consent infringes copyright.

Taking into account the developments resulting from the Directive, the questions considered by the Court on linking may be phrased more precisely as:

  1. does linking amount to a “communication to the public” requiring a copyright holder’s consent?
  2. does an internet user clicking on a link to an authorised copyright work infringe the reproduction right by making an infringing copy of the copyright work?

Does linking amount to a “communication to the public” requiring a copyright holder’s consent?

The CDPA 88 defines “communication to the public” as a communication to the public via electronic transmission, including:

(1) broadcasting the work in question; and

(2) making the work available to members of the public from a place and at a time individually chosen by them.10

Reflecting the broad sense in which “communication to the public” is intended to be applied, the above scenarios are not exhaustive and the Courts have considered its meaning on numerous occasions. In short, a “communication to the public” occurs where a copyright work is communicated:

  1. using technical means different to those previously used or authorised by the copyright holder;11 or
  2. to a “new public”, i.e. a public not taken into account by the copyright holders when they authorised the initial communication.12

Applying the above to linking to third party copyright works:

Description Communication to the public? Example
Retransmission of content freely available with the copyright holder’s consent Yes A copyright holder’s consent is required for each new transmission or retransmission of a copyright work. In TV Catchup,13 the streaming of a programme broadcast on live TV to PCs, smart phones and games consoles (subject to a slight delay) was deemed to be a communication to the public because TV Catchup’s service involved a retransmission of the original broadcast via different technical means.
Content freely accessible with the copyright holder’s consent No In Svennson,14 the Court held that posting links to articles published on newspapers’ websites that were freely accessible online with the copyright holder’s consent was not a communication to a “new public” because all internet users already had free access to the articles.
Content freely accessible without the copyright holder’s consent An "individualised assessment" is required

In GS Media,15 the Court considered the question of whether linking to web pages displaying nude photos of Britt Decker without the copyright holder’s consent. The Court acknowledged that it is difficult when posting links to establish whether the works were available with the copyright holder’s consent. The Court held that linking to web pages containing copyright works without the copyright holder’s consent would be a communication to the public if:

1. the person knew or ought to have known that the link provided access to a work illegally placed on the internet;2. the link circumvents restrictions (e.g. the copyright work was originally available behind a paywall) as this amounts to a deliberate intervention communicating the work to a public that would not otherwise have had access to the copyright work; or3. the link is posted “for profit” and the poster is unable to rebut the presumption it has posted the link in the knowledge that the copyright work was published without the copyright holder’s consent. It is unclear what steps must be taken to rebut this presumption.

Filmspieler

In Filmspieler, the CJEU:

  1. extended the scope of “communication to the public” beyond the posting of links on web pages to include the sale of a multimedia players with pre-installed add-ons containing links to websites with unauthorised 3rd party copyright works; and
  2. provided clarification on assessing whether the link is posted the profit.

As mentioned, the Directive provides that the “mere provision of physical facilities” is not a “communication to the public”. The CJEU held16 that the sale of the multimedia players went beyond the mere provision of physical facilities because:

  • with full knowledge of the consequences, the Defendant pre-installed add-ons containing links that enabled purchasers to access copyright works without the copyright holder’s consent; and
  • the streaming websites to which the multimedia player was linked were not readily identifiable by the public.

The CJEU held that, by the above actions, the defendant intervened to give access, to the purchasers of the multimedia player, to copyright works without each copyright holder’s consent. The CJEU also held that this was a communication to a “public” because it was aimed at an indeterminate large number of persons, i.e. “all persons who could potentially acquire that media player and have an internet connection”.17

The CJEU determined that this was a “new public” by applying GS Media:

  1. firstly, the defendant had full knowledge that the pre-installed add-ons containing links gave access to copyright works published without each copyright holder’s consent – the defendant, in fact, advertised the media player as doing so;18 and
  2. the media player was also supplied with a view to making a profit and the rebuttable presumption could not be rebutted. The CJEU clarified that the context in which the link has been provided should be considered when determining whether the link was posted “for profit”. In this case, “the main attraction of such a multimedia player for potential purchasers lies precisely in the fact that add-ons are pre-installed on it which enables users to gain access to sites on which copyright-protected films are made available without the consent of the copyright holders”.19 It appears that the concept of “for profit” seeks to distinguish between an average individual internet user (who may inadvertently and innocently post links to copyright works published without the copyright holder’s consent) and a commercial party.

Does an internet user clicking on a link to an authorised copyright work infringe the reproduction right by making an infringing copy of the copyright work?

The Directive provides that the reproduction right should be subject to an exception for temporary copies of copyright works which form an integral part of a technical process. The exception is intended to enable acts such as browsing and caching to the extent that they met the relevant conditions.20

Temporary copies do not infringe the reproduction right21 if the copy is:

  1. temporary;
  2. transient or incidental;
  3. an integral and essential part of a technological process;
  4. solely for the purpose of enabling, in respect of copyright work: a) a transmission in a network between third parties by an intermediary; or b) a lawful use; and
  5. without independent economic significance.

The above are strictly interpreted because the exception derogates from the principle that a copyright holder must authorise any reproduction of the copyright work.22

Article 5 (5) of the Directive further provides that the exception should only be applied in certain special cases which not conflict with a normal exploitation of the work or cause unreasonable prejudice to the copyright holder.

Application for internet users - Meltwater23 and Filmspieler

In Meltwater, the CJEU held that copies created while internet browsing, i.e. on-screen copies and cached copies on a computer’s hard-drive were temporary copies and covered by the exception in that they met the requirements of Article 5 (1) and (5) of the Directive. As such, browsers of the internet users browsing the internet would not infringe copyright by clicking links.

In Filmspieler, the CJEU considered the question of whether the temporary copies exception applies to the acts of temporary reproduction, on a multimedia player, of a copyright work streamed from a third party website offering the work without the copyright holder’s consent.

Applying Article 5 (1) of the Directive, the CJEU held that such reproduction was not solely for the purpose of enabling a transmission in a network between third parties by an intermediary. As such, the question was whether the pertinent question was whether the reproduction was solely for the purpose of enabling a lawful use of the work. Lawful use means a use that is authorised by the copyright holder or a use that is not restricted by relevant legislation.24

The CJEU held that this was not a lawful use. The CJEU held that purchasers of the media players would deliberately, and in full knowledge of the consequences, take advantage of a free and unauthorised offer of copyright works.25 To this end, the CJEU relied on the advertising of the multimedia player and its main attraction being the pre-installed add-ons.

The CJEU further held that the requirements in Article 5 (5) of the Directive were not met on the basis that the temporary acts of reproduction adversely affected the normal exploitation of the works, causing unreasonable prejudice to the copyright holder. This was because they would result in a reduced number of lawful transactions.26

Based on the CJEU’s decision in Filmspieler, it appears that individuals streaming unauthorised copies of copyright works via multimedia players with pre-installed add-ons may be exposed to a claim of copyright infringement. It will be interesting to see whether if the Court’s reasoning is (and it will perhaps be unsurprising if it is not) extended to other instances of streaming unauthorised copies of copyright works.

Filmspieler is undoubtedly a victory for copyright holders. It will be interesting to see whether the CJEU extends the concept of “communication to the public”, as recommended by Advocate General Szpunar, to include providing an index and search engine to find copyright works on a P2P network if the operator was aware that a work was available on the network without the copyright holders consent - the specific engine subject of this case being The Pirate Bay.27