In a recent landmark ruling, the Court of Justice of the EU (CJEU) ruled that ISPs in the Netherlands could be forced to block access to BitTorrent site ‘The Pirate Bay’. According to CJEU, the making available and management of an online sharing platform such as The Pirate Bay, must be considered to be an act of communication to the public which may constitute copyright infringement.

The Pirate Bay is a platform through which users can share and upload music, films and other content by exchanging so-called ‘torrent-files’. These files do not actually contain copyrighted works, but refer to files that may be protected works. In the Netherlands, this has resulted in a long-standing legal battle between Stichting Brein, a Dutch foundation which safeguards the interests of copyright rightholders, and internet service providers (ISPs) Ziggo and XS4ALL. Stichting Brein wants the ISPs to block the domain names and IP addresses of The Pirate Bay.

In 2012, the Dutch court of first instance ruled on the issue, blocking access to The Pirate Bay; however, this was overturned on appeal. Stichting Brein then took the case to the Dutch Supreme Court, which referred it to the CJEU for clarification on whether making available torrent-files through a file-sharing platform such as The Pirate Bay, should be considered a ‘communication to the public’ in the sense of the EU Copyright Directive and could therefore constitute copyright infringement.

What constitutes ‘communication to the public’?

The concept of communication to the public falls under the right of making available something which is an exclusive right of the rights holder. It entails two cumulative requirements:

  • An ‘act of communication’ of a work: the act, in full knowledge of its consequences, to give customers access to a copyright protected work;
  • The communication of that work to a ‘public’: in this sense, an indeterminate - but fairly large - number of people.

The CJEU judgement

The CJEU ruled that the making available and managing of an online file-sharing platform such as The Pirate Bay must be considered as an act of communication to the public in the sense of the EU Copyright Directive. Therefore, The Pirate Bay could be held liable for directing users to copyrighted works.

The first requirement set out above was found to be fulfilled as individuals have access to copyrighted works from wherever and whenever they individually choose. Even though the ISPs do not upload the works in question themselves, the operators of the platform play an ‘essential role’ in making available those works. The Pirate Bay offers a search engine, categorises files and filters certain content actively. The operators can therefore not be unaware that access to copyrighted works is provided without the consent of the rights holders in question. It was also noted that the activities are carried out with the purpose of obtaining profit, because considerable income is generated through advertisements.

With the act of communication a new public is targeted, which completes the second requirement. Evidence shows a high number of Ziggo and XS4ALL users have downloaded files through The Pirate Bay and the platform is being used by millions of people. It is also ‘new’, because the public was not already taken into account by the copyright holders when they authorised the initial communication of their work to the public.

The Court concludes by answering the preliminary question: “The concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, must be interpreted as covering, in circumstances such as those at issue in the main proceedings, the making available and management, on the internet, of a sharing platform which, by means of indexation of metadata referring 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.”

Dutch Supreme Court to make final ruling

The case will now return to the Dutch Supreme Court to make a final ruling on the issue. The Pirate Bay is already blocked by a number of European ISPs, including a ban in the UK. This ruling could however set a precedent for a wider range of European countries.