CJEU, 14thJune, C-610/15Stichting Brein/Ziggo BV, XS4All Internet BV (NL)

On 14th June 2017, the Court of Justice of the European Union (CJEU) ruled the matter of peer-to-peer sharing platform as regards the right of communication to the public (Article 3.1 of the 2001/29 EU Directive). Expectedly the Court considers that the making available and management of such a website may infringe copyright on the grounds of 3.1 of the 2001/29 directive.

The platform in question is the notorious The Pirate Bay, which is widely known for allowing users to access torrent files and magnet links which contain metadata, by means of indexation and a search engine, such metadata enabling users to download protected works without the authorization of right holders. This kind of website usually argues that it does not host any protected content and that the administrators do not upload any content by themselves on the platform. Netherlands’ suprem court asked the CJEU if the operator of such a platform should be considered as communicating works to the public.

In its decision the Court extensively refers to its recent ruling of 26th April 2017 “Filmspeler” and reminds its case law regarding communication to the public, including decisions regarding hyperlinking (GS Media, Reha Training, BestWater, Svensson, ITV Broadcasting, Premier League). The Court notably insists on the deliberate nature of the user’s intervention by stating that “any act by which a user, with full knowledge of the relevant facts, provides its clients with access to protected works is liable to constitute an ‘act of communication’” (§34).

Although the protected works are made available on the platform by users, the Court finds that the operator plays an “essential role in making the works in question available” (§37). As a matter of fact the operator acts with full knowledge of the consequences by indexing and classifying the files and links depending on the corresponding works; therefore the operator facilitates access to the works. The Court also notes that in the absence of such a platform and the management by the operator, “the works could not be shared by the users, or, at the very least, sharing them on the internet would prove to be more complex” (§36). Therefore the operators cannot be considered to be making a mere provision of facilities for enabling or making a communication as provided by recital 27 of the 2001/29 directive.

In the light of the CJUE’s recent case law, this approach and the ruling was predictable and expected. It is nonetheless a welcomed clarification of the solution regarding intermediaries, links directory and/or metadata providers which allow users to access protected works. Moreover, it seems that the intermediaries’ behavior as well as the importance of their role in making the content available is now a deciding factor for the judge to rule on the operator’s liability or regarding measures which aims at terminating infringements made by these services.