In a preliminary judgment of 14 June 2017, Case C-610/15, the Court of Justice of the European Union (‘CJEU’) held that the making available and management of a peer-to-peer sharing platform may constitute a copyright infringement.

Facts of the case

In the underlying main proceedings before the Supreme Court of the Netherlands, Stichting Brein, a Dutch foundation which safeguards the interests of copyright holders, sued two internet access providers to block the domain names and IP addresses of a certain online platform called The Pirate Bay (‘TPB’), in order to prevent the services of the internet access providers from being used to infringe the copyright and related rights of the right holders.

TPB is an ‘indexer’ of torrent files. BitTorrent is a protocol through which users can share files. The essential characteristic of BitTorrent is that it divides files for sharing into segments, thus removing the need to rely on a central server to store those files. This lessens the burden on individual servers during the sharing process.

In order to share files, TPB users must first download specific software (‘BitTorrent Client’), which is not provided by TPB. BitTorrent Client is software which allows the creation of torrent files. Users who wish to make a file on their computer available to other users have to create a torrent file through their BitTorrent Client. Torrent files refer to a central server which identifies the users available to share a particular torrent file, as well as the underlying media file. These torrent files were uploaded by the users to TPB, which then proceeded to index them so that they can be found by the TPB users, and the works to which those torrent files refer can be downloaded onto the users’ computers in several segments through their BitTorrent Client.

According to the CJEU, the torrent files offered on TPB relate mainly to copyright-protected works, without the right holders having given their consent to the operators or users of that platform to carry out the sharing acts in question.

The CJEU’s decision

Pursuant to Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001, on the harmonisation of certain aspects of copyright and related rights in the information society (‘Copyright Directive’), Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including making available to the public their works in such a way that members of the public may access them from a place and at a time individually chosen by them (‘Concept of Communication to the Public’).

The CJEU held that the Concept of Communication to the Public must be interpreted as covering TPB’s sharing platform, i.e., the “making available and management, on the internet, of a sharing platform which, by means of indexation of metadata relating to protected works and the provision of a search engine, allows users of that platform to locate those works and to share them in the context of a peer-to-peer network”.

The CJEU expressly referred to its recent preliminary ruling of 26 April 2017, Case C-527/15, where the Concept of Communication to the Public was assessed in the light of a multimedia player, enabling streaming of content without the right holder’s consent.

Further, the CJEU relied on the fact that the operators of TPB, by making available and managing TPB, intervene, with full knowledge of the consequences of their conduct, to provide access to protected works. The CJEU emphasised that, without making available and managing TPB, the works could not be shared by the users or, at the very least, that sharing them on the internet would prove to be more complex. Therefore, in the view of the CJEU, the operators of TPB shall be regarded as “playing an essential role in making the works in question available”.

Comment

The decision will be welcomed by right holders. It confirms the CJEU’s broad interpretation of the Concept of Communication to the Public, as developed in the CJEU’s recent case law.