The Court of Justice of the European Union (“CJEU”) ruled on 26 April 2017 that the sale of a multimedia player which enables films that are available illegally on the internet to be viewed easily and for free on a television screen could constitute an infringement of copyright. While the case centred on one man’s business in the Netherlands, it will have wider implications for other similar types of multimedia players.
Dutch anti-piracy foundation, Stichting Brein, had issued proceedings in the Netherlands to try to stop the sale by a Mr Wullems of a multimedia player called “Filmspeler” which used open source software and add-ons to illegally give users access to copyright protected works . The Dutch Court referred questions to the CJEU including whether the marketing of the multimedia player amounted to “a communication to the public” in breach of Dutch and European copyright law1 . The Court held that it did.
The court noted that the device acts as a medium between a source of audiovisual data and a television screen. On the player, Mr Wullems installed an open source software that enabled files to be played through a user-friendly interface, via structured menus. In addition, integrated into the player were add-ons available on the internet whose function is to retrieve content from streaming websites and make it start playing on a simple click on the multimedia player connected to a television. Furthermore, the player was advertised as making it easy and free to watch audiovisual material available on the internet on a television without the consent of the copyright holders.
Having regard to the content of the advertising of the player and the fact that its main attraction for potential customers is the pre-installation of the add-ons, the Court found that the purchaser accesses a free and unauthorised offer of protected works deliberately and in full knowledge of the circumstances. According to the referring court, the multimedia players were purchased by a “fairly large number of people”, and the CJEU said that the communication at issue covers all those people who could potentially acquire a media player and have an internet connection. Because of this, the communication is aimed at an indeterminate number of potential recipients. In addition, the provision of the multimedia player is made with a view to making a profit,
The Court also found that temporary reproduction on a multimedia player, of a copyright protected work obtained by streaming on a website belonging to a third party offering that work without the consent of the copyright holder, is not exempt from the right of reproduction. The Court concluded that acts of temporary reproduction of copyright protected works on such multimedia players “adversely affects the normal exploitation of those works and causes unreasonable prejudice to the legitimate interests of the copyright holders” because it usually results in a decrease of the lawful transactions relating to those works.
The result of the decision will have an impact throughout the EU and here where similar media players are widely available. While the issue considered by the court is not the sale of the players in isolation but essentially the pre-loading of the players with technology that enables and actively promotes access to content available on streaming websites without the consent of the copyright holders, the decision will make it easier for rights holders to take action against defendants who, although not the source of infringing content, derive profit from enabling access to it.
This decision is also indicative of the wider crackdown by European and national courts on copyright infringement as a result of actions taken by the audio-visual industry. Recently, the CJEU as part of a long-running dispute between a number of British broadcasters and internet streaming service "TVCatchup", held that the online streaming by third parties of live television broadcasts is, with limited exceptions, contrary to EU law. Closer to home, the High Court earlier this month, granted injunctions to six major film and TV studios directing internet service providers to block access to websites involved in illegal streaming or downloading of films and TV shows, having heard evidence that digital piracy is costing the studios hundreds of millions annually and having serious adverse effects on the indigenous film and television industry here.