On 14 June, the CJEU handed down its judgment in Stichting Brein v Ziggo BV and XS4ALL Internet BV (C-610/15) finding that the operators of file sharing BitTorrent websites, such as The Pirate Bay, are infringing copyright by making a “communication to the public” under Article 3(1) the InfoSoc Directive (Directive 2001/29).
The Pirate Bay (“TPB”) is an online sharing platform that organises and indexes BitTorrent files that are uploaded by its subscribers. These files mainly relate to copyright-protected works which are shared without the right holders consent. Stichting Brein (a foundation which safeguards the interests of copyright holders in the Netherlands) alleged that in doing so, TPB infringed the copyright held by the right holders and sought to force the two internet providers (Ziggo BV and XS4ALL) to block access to it. The Netherlands Supreme Court did not consider that its case law allowed it to conclude with certainty whether online sharing platforms, such as TPB, were communicating works to the public by merely hosting a means of access to the protected material and so referred the question to the CJEU.
The CJEU Decision
The CJEU heavily referenced its previous decisions on the meaning of “communication to the public” including its April 2017 decision in Filmspeler C-527/15 (which we have previously reported on here) and emphasised that both elements, an "act of communication" and a "public", must be established before there is liability.
(a) “act of communication”
The CJEU noted that the court must consider the “indispensable role” played by the user (being TPB in this case) and the “deliberate nature” of that user’s intervention and concluded that “as a rule, any act whereby a user, with full knowledge of the relevant facts, provides its clients [customers] with access to protected works, is liable to constitute an “act of communication” for the purposes of Article 3(1)” of the InfoSoc Directive.
Despite not uploading the protected work onto the platform themselves, the CJEU noted that the operators of TPB had indexed, managed and made available the protected works that had been uploaded by their users, with full knowledge of the consequences of their conduct. Without that intervention, the copyright works could not be shared or only shared with difficulty. The CJEU concluded that the operators of TPB therefore played an essential role in making the copyright works available and their activities went beyond merely providing physical facilities for enabling or making a communication within the meaning of recital 27 of the InfoSoc Directive.
The Court stated that the concept of “public” involves a certain de minimis threshold which excludes groups that are too small or considered insignificant. In this case, a large number of subscribers to Ziggo and XS4ALL had downloaded media files using TPB; TPB alone claimed to have several dozens of millions of users. As these users could access the protected works which were shared by TPB’s platform at any time and simultaneously, the ‘act of communication’ was in relation to all such users, which was found to be a substantial “public”.
This “public” was examined further. The CJEU considered how TPB knew that the protected works were being shared without the right-holders consent, noting that TPB expressly displayed on blogs and forums their purpose to make protected works available to the users and to encourage them to make copies of these works. It was therefore held that the communication was to a “new public” due to the fact it was a public that was not taken into account by the copyright holders when they authorised the initial communication.
The conclusion reached by the CJEU that TPB’s activities amounted to a ‘communication to the public’ was not surprising given the trend of the CJEU’s jurisprudence on its interpretation of this right. The decision is also in line with the position in the UK where in 2012 the High court ruled that TPB breached copyright laws and so ordered service providers including Sky and Virgin Media to block access to it in the UK.
Points to Note
This is another reminder that caution needs to be exercised in respect of operating a platform that has the purpose of sharing copyright works.
If you are a copyright owner, this decision further bolsters your position to seek remedies against the platform provider.
If you are providing those services and you become aware infringing copyright materials are being shared on your platform without the right holders consent, then liability is likely to follow.