By Alastair Mackichan, John Cloke and John Wilks
In another welcome decision for content owners and broadcasters, the CJEU has dealt a significant blow to the business models of those individuals looking to profit from the sale of pre-configured media players which provide end-users with hyperlinks to copyright-infringing Internet streams.
In its Filmspeler judgment (available here), the Court followed the opinion of its Advocate General (previously reported here) that the mere sale of media players (such as IPTV/ Kodi boxes) which are pre-configured (or “fully loaded”) to display pirated content itself constitutes a communication to the public, provided certain conditions are met.
Importantly, the court confirmed that reproductions of pirate material created in those players are not covered by the “temporary copying” defence, confirming that infringement can occur via the use of the box by the end user (and so not only by those making available streams).
Communication to the public
The Court found that there was a communication to the public (i.e. a primary act of copyright infringement) by the seller of a media player that is pre-configured to link to pirated content, where the seller is (i) looking to make a profit, and (ii) fully aware that the devices’ pre-installed add-ons link to unauthorised content.
The Court held that, by facilitating end-users’ access to pirated content, a seller of these pre-configured media players enabled a direct link to be established between (i) the websites that are illegally broadcasting copyright-protected content, and (ii) the purchasers of the multimedia devices. Applying the criteria established in GS Media (see our blog post here), the CJEU noted that the profit-making intention subsists because “the multimedia player is supplied with a view to making a profit“.
The ruling extends the range of ‘intermediaries’ (i.e. those who are not initially responsible for making available and/or transmitting the works) that may carry out a communication to the public. Such a conclusion will be welcomed by rights holders and will make it easier for them to take action where the initial infringer is outside of the rights holder’s jurisdiction and/or has taken steps to conceal their identity.
The case also raised the issue of whether the streaming of the pirated content in the end user’s device amounted to a copyright-infringing act of reproduction. The CJEU had previously determined that reproduction in the memory of decoders – and on users’ screens – can amount to infringement by reproduction, unless a defence applies.
The Copyright Directive provides a defence against copyright infringement for a person who (in certain circumstances) makes temporary copies of copyright works without authorisation. There are five conditions that need to be met, but critically in this case, one condition is that the reproduction must be pursuant to a “lawful use” of the work.
The Court deemed the objective of the Filmspeler device was not to enable a lawful use of the unlicensed content. As a result, the temporary copies of the copyright works on the player adversely affected the normal exploitation of those works and led to a reduction in lawful transactions relating to them.
This conclusion means that, in the streaming context, copyright infringement is not limited to the communication to the public of a pirated copyright work – it may also occur as a result of the reception by a private viewer of pirated copyright works on viewing devices (whether “fully loaded” or not), or other associated reproductions.
Although in our view this conclusion is obviously correct, a perception has long-persisted among certain sections of the public that merely viewing pirated content online is “not illegal”. This perception has long been exploited by those who market devices, or run pirate websites, but may well now shift as a result of this judgment.