This Summer, the Court of Justice of the European Union ("CJEU") was yet again tasked with interpreting the concept "communication to the public" within the meaning of Article 3(1) of the 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 ("InfoSoc Directive"). The case discussed in this post is C-610/15 Stichting Brein v Ziggo, also referred to as the Pirate Bay judgment. The ruling is significant because it clarifies which actors may be held liable for copyright infringement in the EU.
The ambiguity regarding the interpretation of the concept "communication to the public" is at least partially caused by the fact that the InfoSoc Directive does not define the concept. Furthermore, the CJEU has stated that the concept of "communication to the public" requires individual assessment (see e.g. CJEU's judgment of 8 September 2016, GS Media, C-160/15, para. 33). As a consequence, the scope of the concept may be unclear in situations which are not covered by existing case law.
The decision at hand concerned a new kind of situation which was not covered by the existing case law (see e.g., Svensson (C-466/12) GS Media (C-160/15) or Stichting Brein (C-527/15)) according to the CJEU. The question which was referred to the CJEU was whether TPB, a platform operator (a company which delivers services over specified distribution platforms), communicates works to the public. The online sharing platform TPB is an indexer of BitTorrent files. The torrent files offered on the online sharing platform TPB relate mainly to copyright-protected works, without the right holders having given their consent to the operators or users of that platform to share the works.
The CJEU noted that the concept of "communication to the public" involves two criteria: an "act of communication" of a work and the communication of that work to a "public". With regards to the former criteria, the CJEU stated that although works have not been placed online by the platform operators but by its users, the online sharing platform intervenes to provide access to protected works with full knowledge of the consequences of their conduct. The CJEU also pointed out that the platform indexes torrent files in a way that the works may be easily located and downloaded by the users of that sharing platform. Furthermore, with regards to the latter criteria, the CJEU held that the platform operators must have been aware of the fact that their platform provides access to works published without the consent of the right holders due to the large amount of torrent files on the platform which relate to such works. The CJEU also pointed out that the purpose of managing the TPB platform is to make profit. Therefore, the CJEU concluded that operators of online sharing platforms, such as TPB, are making a "communication to the public" within the meaning of Article 3(1) of the InfoSoc Directive.