Will The Pirate Bay's access to a torrent of copyright treasures be blocked?

On 14 June 2017, in Stichting Brein v Ziggo BV and XS4ALL Internet BV (C-610/15), the Court of Justice of the European Union (Court) confirmed, in a preliminary ruling referred by the Supreme Court of the Netherlands, that The Pirate Bay (TPB) makes a 'communication to the public' for the purposes of Article 3(1) of Directive 2001/29/EC (the Copyright Directive).

Whilst noting that TPB does not give direct access to copyright works, the Court concluded that, in providing a search engine and indexation system allowing users to locate torrent files on its platform, TPB plays "an essential role" in users gaining access to copyright works without the authors' consent. TPB acts "in full knowledge of the consequences" of its intervention, without which users would find sharing such works more complex. As a result, the Court held that the activities of TPB constitute a 'communication to the public' under Article 3(1) of the Copyright Directive.

Dutch proceedings and Article 3 (1)

In the original application in the Dutch courts, Stichting Brein, a promoter of copyright holders' interests, sought an order requiring the internet service providers, Ziggo and XS4ALL, to block access to TPB.

The Supreme Court of the Netherlands stayed those proceedings and referred two questions to the Court for a preliminary ruling, including whether or not sites such as TPB make a 'communication to the public' for the purposes of Article 3(1).

Article 3(1) provides the authors of copyright works with the exclusive right to permit or prohibit the communication of their works to the public. This covers any transmission or retransmission of the work whether by wire or wireless means.

TPB manages an online sharing platform which, via indexation of metadata relating to copyright works held on users' computers and the provision of a search engine, allows its users to locate those works and then share them on a peer-to-peer network.

The role of The Pirate Bay

As the Court noted, whilst TPB itself does not make copyright works available without the authors' consent, it does perform "an essential role" in this occurring, in full knowledge of the consequences of its actions, by providing an indexation system and search engine for torrent files on its platform through which users may obtain access to copyright works.

The Court stated that it was also relevant that TPB actively manages the torrent files on its platform, categorising them according to popularity/genre, removing faulty files and filtering some content, in order to make locating files easier. As a result, TPB cannot be said to be providing mere 'facilities' being used by third parties to make copyright works available; it is well-known that TPB is used for such purposes and TPB takes an active role in facilitating and even promoting this. It was also deemed to be "not irrelevant" that TPB's activities were carried out for profit.

The Court therefore concluded that 'communication to the public' under Article 3(1) covers the activities of those such as TPB who make available and manage on the Internet a sharing platform which, via the indexation of metadata relating to copyright works and the provision of a search engine, allows their users to locate said copyright works and share them on a peer-to-peer network.

Comment

The case will now be sent back to the referring Dutch court for a decision on the original request for an order requiring the ISPs in question to block access to TPB. The main ISPs in the UK have been blocking access to TPB for a number of years already, and so the case is mainly of interest in this country because of the Court's approach to the meaning of 'communication to the public'.

The Court emphasised that the principal objective of the Copyright Directive is to ensure a high level of protection for authors, meaning that the concept of 'communication to the public' should be interpreted broadly and to reflect modern technological developments.

The Pirate Bay case is the latest example of this approach by the Court, given it has already confirmed that a 'communication to the public' is also made by the operation of a website linking to other sites giving unauthorised access to copyright works and the sale of multimedia players with unauthorised links to copyright works (in the Svensson C-466/12 and Jack Frederik Wullems C-527/15 cases respectively).