Copyright: communication to the public

Summary

The European Court of Justice (ECJ) has held that the making available and management of an online sharing platform fell within the scope of "communication to the public".

Background

EU member states must provide authors with the exclusive right to authorise or prohibit any communication to the public of their works by wire or wireless means, including the making available to the public of 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 (Article 3(1), Copyright Directive (2001/29/EC)) (Article 3(1)).

Article 11 of the Intellectual Property Enforcement Directive (2004/48/EC) provides that member states shall also ensure that rights holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right (Article 11, Intellectual Property Enforcement Directive (2004/48/EC); Article 8(3), Copyright Directive) (Article 8(3)).

The ECJ has given guidance on the availability of injunctions under Article 8(3) in Svensson and others v Retriever Sverige AB and GS Media BV v Sanoma Media Netherlands BV and others (see News briefs "Linking and framing copyright material: guidance at last", www.practicallaw.com/4-558-3665 and "Hyperlinking to unauthorised content: ECJ imposes conditions", www.practicallaw.com/2-633-7919).

Member states must ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that one of the following applies:

• The provider does not have actual knowledge of illegal activity or information.
• The provider, on obtaining this knowledge or awareness, acts expeditiously to remove or to disable access to the information (Article 14(1), E-commerce Directive (2000/31/EC)) (Article 14(1)).

Facts

S brought proceedings in the Netherlands against internet service providers (ISPs) (together, Z), seeking an order that Z should block their subscribers from using the website of T, a search engine for P2P file-sharing which indexed and categorised the metadata relating to files. S alleged that this engine was facilitating large-scale copyright infringements. The order was granted, but reversed on appeal on the grounds that it was T's users, and not T itself, that were committing infringement, and that the order would be disproportionate.

The Dutch Supreme Court referred the following questions to the ECJ:

• Whether there was a communication to the public in these circumstances such that T was a primary infringer.
• If not, whether an injunction could be granted against an intermediary facilitating the acts of third parties in this way.

Decision

The ECJ ruled that the concept of "communication to the public" within the meaning of Article 3(1) included the making available and management of an online sharing platform that allowed users to locate copyright works and share them over a peer-to-peer network, by means of indexation of metadata and the provision of a search engine. The ECJ did not need to answer the second question.

Any act by which a user, with full knowledge of the relevant facts, provided its clients with access to protected works was an "act of communication" for the purposes of Article 3(1). For there to be an "act of communication", it was sufficient that a work was made available to a public in such a way that the persons comprising that public could access it, from wherever and whenever they individually chose, whether or not they actually took that opportunity. "A communication to the public" must be communicated using new technical means or, failing that, to a "new public", that is, a public that was not already taken into account by the copyright holders when they authorised the initial communication of their work to the public. The profit-making nature of a communication was relevant.

Here, T made copyright-protected works available to users so that they could access them from wherever, and whenever, they individually chose. Z indexed torrent files to enable users to locate, upload, download and share specific files with full knowledge of the consequences of that conduct. Without that assistance, it would be far more complex and difficult for users to share the files. Z therefore played an essential role in making the works available. Z were not making a "mere provision" of physical facilities for enabling or making a communication since they indexed the files in such a way as to facilitate the location and downloading of them by users. As well as the search engine the site indexed files into particular categories based on the type of work, its genre and popularity. Z also deleted obsolete or faulty torrent files and actively filtered some content. So, the provision and management of a "Pirate Bay" type online sharing platform fell within the concept of communication to the public under Article 3(1).

Z's subscribers had downloaded files from T and the site had a considerable number of users. Any infringing communication that took place covered, at the very least, all these users, since all could access the works at any time and could have done so simultaneously. This meant that the works were communicated to a "public". Z knew that the works indexed on its sites were being published without the copyright holders' authorisation and Z expressly stated, on blogs and forums available on that platform, its purpose to make protected works available to users, and encouraged them to make copies. It followed that the communication was to a "new" public. T clearly provided its website to make a profit from advertising revenue.

Comment

T has for some time been blocked in the UK by the main ISPs on the basis that T authorised and induced its users to infringe copyright. This decision brings the activities of sites such as T within the scope of primary liability for communication to the public.

The ECJ has again interpreted the concept of communication to the public broadly, to give effect to the Copyright Directive's primary objective of establishing a high level of protection for copyright owners and enabling them to be rewarded for the use of their works. Recently, in Stichting Brein v Jack Frederik Wullems, the ECJ ruled that communication to the public covered the sale of multimedia players with links to unauthorised content (www.practicallaw.com/w-008-371).

Case: Stichting Brein v Ziggo BV and another, C-610/15.

First published in the August 2017 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.