In its ruling of 26 April 2017 (C-527/15), the European Court of Justice (hereafter, the ECJ) has further clarified the concept of "communication to the public" in the digital environment. This notion is a core concept of copyright. Indeed, according to article 3 of the Directive 2001/29 harmonizing certain aspects of copyright in the information society (hereafter, the Directive 2001/29), authors have, except as permitted by law, the exclusive right to authorize or prohibit any ‘communication to the public’ of their works. 

ECJ previous case law

In its ruling of 8 September 2016 (C-160/15), the ECJ held that the posting of a hyperlink on a website to works protected by copyright and published without the author’s consent on another website constitutes a ‘communication to the public’ when the hyperlinks are provided for profit. In that specific case, as the person who posted the links did not seek financial gain and acted without knowledge that those works were published illegally, the ECJ had estimated that the posting of the hyperlinks did not constitute a ‘communication to the public’ and thus an infringement of copyright.

This judgment was in line with the previous ECJ case law. The case of 26 April goes one step further, as it extends this case law to the sale of a media player and as it further clarifies the concept of ‘communication to the public’ and its application to the digital environment.

Background of the new decision and preliminary question

The case of 26 April opposed Stichting Brein, a foundation that protects the interests of copyright holders, and Mr Jack Frederik Wullems, concerning the sale by him of multimedia players. On those players, Mr Wullems installed an open source software, which made it possible to play files through a user-friendly interface via structured menus, and integrated into it add-ons available on the internet, created by third parties, some of which specifically link to websites on which protected works are made available without the consent of the copyright holders.

Mr Wullems advertised the multimedia player by stating that it made it possible, in particular, to watch on a television screen, freely and easily, audiovisual material available on the internet without the consent of the copyright holders.

Stichting Brein asked the Rechtbank Midden-Nederland (District Court of Midden-Nederland, Netherlands) to order Mr Wullems to cease selling multimedia players including hyperlinks that illegally give users access to protected works. Stichting Brein submitted that, by marketing that multimedia player, Mr Wullems had made a ‘communication to the public’ in breach of the Netherlands law on copyright transposing EU Directive 2001/29.

The Rechtbank Midden Nederland decided to refer a question to the Court of Justice on that subject.

Decision of the Court 

In its judgment of 26 April, the Court of Justice held that the sale of a multimedia player, such as the one in question which enables films that are available illegally on the internet to be viewed easily and for free on a television screen, is a ‘communication to the public’, within the meaning of the Directive 2001/29.

The Court recalled, in that regard, its case law according to which the aim of the Directive is to establish a high level of protection for authors and that the concept of ‘communication to the public’ must therefore be interpreted broadly (see notably Case C-466/12 and Case C-348/13).

Moreover, contrary to the case C-160/15, the Court observed that the multimedia player was purchased by a fairly large number of people. Furthermore, the communication at issue covered all persons who could potentially acquire that media player and have an internet connection. Thus, that communication was aimed at an indeterminate number of potential recipients and involved a large number of persons. The Court also noted that the provision of the multimedia player was made in order to make a profit, and that the price for the multimedia player was paid to obtain direct access to protected works available on streaming websites without the consent of the copyright holders. This certainly had an impact on the outcome of its decision.