The CJEU has once again been asked to consider the meaning of “communication to the public” within Article 3(1) of the Copyright Directive.

In Stichting Brein v Ziggo BV, XS4ALL Internet BV (Case C‑610/15), the CJEU has been asked to identify the scope of liability for copyright infringement committed by ‘card providers,’ namely sites such as The Pirate Bay, where files containing music and films are shared free of charge, and usually in breach of copyright. 

On 8 February, 2017, the Attorney General () delivered an Opinion advising the CJEU to find copyright infringement where a website (such as The Pirate Bay) indexes content available on peer-to-peer (P2P) networks, even where there is no actual content on the website. However the AG found copyright infringement will only occur where the website operator has actual knowledge of the illegality and takes no action. Accordingly, if copyright holders notify a site’s operators of the illegal nature of information appearing on the site, and they fail to take action to make access to that work impossible, then the site operator may be held liable.

Background

A Dutch organisation, Stichting Berlin, whose goal is to fight piracy, applied for an injunction against the two biggest ISPs in the Netherlands, Ziggo and XS4ALL. Stichting Berlin claimed that as access providers they are obliged to block access by their users to The Pirate Bay. The Netherlands Supreme Court submitted the following questions to the CJEU:

  1. Whether the search engine technology used by indexing websites such as The Pirate Bay constitutes a “communication to the public” within the meaning of Article 3(1) of the Copyright Directive (2001/29), and
  2. If not, whether Article 8(3) of the Copyright Directive and Article 11 of the Directive on the Enforcement of IP Rights (2004/48) offer any scope for obtaining an injunction against an ISP ordering it to block access for its users to an indexing site of a P2P network.

The Court noted that the Copyright Directive does not define the concept of “communication to the public,” but according to case-law two criteria are necessary, including: (a) the act of communication and (b) the presence of a public.

In regard to the first criterion, the Court emphasised “the essential role of the player originating the communication and the deliberate nature of its intervention“. The Court found that the operation of P2P networks would not be possible or at least would be less efficient, without sites like The Pirate Bay, which enable works to be found and accessed. The website operators’ role may therefore be regarded as necessary and deliberate.

The second criterion involves 2 requirements, firstly that the communication is intended for an indeterminate but fairly large number of potential recipients (i.e. a website accessible by the public), and secondly, that the communication is intended for a “new public”. The Court found that if the author of a work has not consented to it being shared on a P2P network, the users of that network constitute by definition a new public.

Decision

The AG recommended that the CJEU finds copyright infringement by The Pirate Bay. The AG made it clear at the outset, that in his Opinion, the problems raised in the present case were substantially different from those in two recent copyright infringement cases, namely Svensson and Others and GS Media. The AG noted that those cases concerned the secondary communication of works already accessible on the internet by a person providing the online content himself, whereas the present case concerned original communication, made on a P2P network. As such, the CJEU reasoning in those cases could not be directly applied in the present case.

The AG ruled that the operator a website like The Pirate Bay, by making it possible to find copyright protected files offered on P2P networks, does make a “communication to the public” within the meaning of Art. 3(1) of the Copyright Directive if: (i) he is aware of the fact that the works are made available on the network without the consent of the copyright holders, and if (ii) he does not take action in order to make access to that work impossible.

The AG emphasised that it would not be appropriate to apply to such a site a presumption of knowledge, similar to that adopted by the CJEU in GS Media in the case of persons who had posted a hyperlink for profit (see our blog post on GS Media). Such a presumption would amount to imposing on operators of indexing sites of P2P networks, which normally operate for profit, a general obligation to monitor the indexed content.

The AG held that if the CJEU does not agree with his finding of copyright infringement by The Pirate Bay, then Article 8(3) of the Copyright Directive must be interpreted as permitting an injunction to be obtained against an ISP ordering it to block access for its users to an indexing site of a P2P network, if the operator of that site can, under national law, be held liable for copyright infringements committed by users of that network. However, that measure must be proportionate to the significance and seriousness of the copyright infringements committed which is a matter for the national court to determine.