AG Opinion in Filmspeler: Copyright Directive’s exceptions and rights in the spotlight again

On 8 December 2016 Advocate General (AG) Manuel Campos Sánchez-Bordona issued his advisory Opinion in Stichting Brein v. Jack Frederik Wullems, referred to as the Filmspeler case (C-527/15), a reference to the Court of Justice of the European Union (CJEU) from the Dutch courts. The AG’s Opinion concerns a multimedia player that can stream content from third party websites via a TV connection. The player often came with pre-installed software featuring hyperlinks to third party websites where content could be streamed without rightsholder permission. The AG found that both sellers and users of the ‘filmspeler’ player infringe copyright. In an article for Tech, Media and Comms Lawyer, Robert Guthrie and Abby Minns of Osborne Clarke analyse the AG’s Opinion, how it fits with other recent case law in this area, and what it would mean for rightsholders should the CJEU follow the AG in this matter.

The CJEU has in the last few years dealt with a large number of references on the scope of the rights and exceptions set out in the Copyright Directive (also known as the Information Society Directive). The latest case to deal with these issues – Stichting Brein v. Wullems but commonly referred to as Filmspeler – is a reference from the Dutch courts. The reference concerns a multimedia player marketed under the name ‘filmspeler’ (movie player) which can be connected to a television and used to stream programmes and films from third party websites. The device was often sold with pre-installed add-ons that contained hyperlinks to third party websites, some of which allowed films, television series and sporting events to be streamed without the authorisation of the rightsholders.

The Dutch Court’s reference to the CJEU essentially concerned two issues: (1) whether the sale of the ‘filmspeler’ device infringed the communication right (Article 3(1) of the Copyright Directive); and (2) whether individuals who used the ‘filmspeler’ device to stream illegal content would avoid liability for copyright infringement because of the temporary copies exception (Article 5 of the Copyright Directive).

The AG’s Opinion will be welcomed by copyright owners because his view was that the sale of the filmspeler device did infringe the communication right and that users who streamed illegal content were not covered by the temporary copies exception, at least not if they were aware that the content was illegal.

Issue 1: Hyperlinks and the communication right

When the provision of hyperlinks constitutes a ‘communication to the public’ and thereby falls within the scope of the communication right has been a hot topic for the CJEU recently.

Svensson and the concept of a ‘new public’

The CJEU’s first decision on hyperlinking was Svensson. This case concerned hyperlinks to articles which had already been published on other websites with the authorisation of the copyright holder. In its decision, the CJEU ruled that the provision of a hyperlink was a communication but ruled that it should only be considered a communication to the public for the purposes of the communication right if the communication was to a ‘new public.’ A hyperlink to copyright protected works that had been made freely accessible on another website by the rightsholder did not constitute a communication to a ‘new public’ and therefore did not infringe the communication right. In contrast, if a hyperlink made it possible for users to circumvent access restrictions, this would be a communication to a wider public than that which had been authorised by the rightsholder and hence would be to a ‘new public.’

GS Media – hyperlinking to unauthorised content 

Svensson concerned hyperlinks to content that had been authorised by the rightsholder. In GS Media the CJEU had to consider the position when the hyperlinks directed to unauthorised content. GS Media had provided links to third party websites from which it was possible to download leaked photographs of a reality TV star (the photographs were due to be published in an upcoming edition of Playboy magazine). The CJEU decided that even though the photographs were already freely accessible on the internet, the provision of the hyperlinks was a communication to the public because the rightsholder had not authorised the act of communication that occurred by posting the photographs online. The CJEU appreciated that it would not always be easy to check whether a rightsholder has authorised a particular copy of a protected work that was available on a third party website. Therefore, the CJEU ruled that a person who provides a hyperlink to protected works without pursuit of financial gain would not infringe the communication right if they did not know and could not reasonably have known the illegal nature of the publication of those protected works. In contrast, when the posting of hyperlinks is carried out for profit the CJEU took the view that it should be expected that the person who posted such a link would carry out the necessary checks to ensure that the protected work was not illegally published.

Filmspeler – hyperlinks in products 

The Filmspeler reference differs from GS Media because the hyperlinks concerned were coded within the software of a multimedia player which is being marketed and sold, rather than being posted on a website. The Commission appeared before the CJEU and submitted that GS Media should not be extended to the sale of a device such as ‘filmspeler,’ relying in part on Recital 27 of the Copyright Directive, which provides that ‘the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Directive.’ The AG disagreed, in his view the marketing of ‘filmspeler’ went beyond the provision of physical facilities as the device provided the necessary hardware and software that enabled purchasers to access copyright protected works on the internet without the consent of the rightsholder. Further, the ‘filmspeler’ device provided access to the works via a user friendly menu which might enable persons not particularly skilled at using the internet to find illegal content; as such it communicated the protected works to a ‘new public.’

Issue 2: Temporary copies produced during streaming

When the ‘filmspeler’ device is used, temporary copies of content streamed from the internet are created in the cache and on-screen memory. The AG noted that streaming from payment platforms presents no significant difficulties from the point of view of intellectual property, nor do difficulties arise where a user views or listens to digital content that is not subject to access restrictions. However, in his view, when the content being streamed is illegal, or where there is a circumvention of access restrictions, these temporary copies are not covered by the temporary copies exception because they do not satisfy the requirement that such copies had to enable a ‘lawful use’ of the protected work. In an extension of the knowledge requirements set out in GS Media, the AG proposed that the key factor for determining liability of person who clicks on a hyperlink is whether or not he/she had knowledge that the protected work was available on the internet unlawfully. He suggested that ‘excusable ignorance’ or ‘reasonable lack of knowledge’ on the part of the end user of the illegal nature of the content should exempt the user from liability.

What could this mean for illegal streaming? 

If the CJEU follows the AG’s Opinion on the scope of the temporary copies exception, then it would mean that internet users who streamed illegal content could be personally liable for copyright infringement. This would mean that rightsholders could potentially seek to enforce their rights directly against these individuals, as they currently can do for those downloading illegal content (although, as with downloads, there may be many practical difficulties in taking such enforcement action).

At first glance it might appear obvious that the streaming of illegal content is not a lawful use and that therefore the CJEU is bound to follow the AG’s Opinion. It could be said, however, that this approach is not in line with the CJEU’s reasoning in Premier League and Meltwater. In those cases, temporary copies created whilst receiving broadcasts and browsing webpages were considered to fall within the temporary copies exception despite the rightsholders’ objections. Part of the reason for this, according to the UK’s Supreme Court in its judgment in Meltwater, was that “it has never been an infringement, in either English or EU law, for a person merely to view or read an infringing article in physical form” and “[a]ll that [the temporary copies exception] achieves is to treat the viewing of copyright material on the internet in the same way as its viewing in physical form, notwithstanding that the technical processes involved incidentally include the making of temporary copies within the electronic equipment concerned.” If the Supreme Court’s approach is correct, then the streaming of illegal content could itself be considered a lawful use in the same way that playing a pirated tape would not be unlawful. The CJEU may decide that its decisions in Premier League and Meltwater do not necessarily lead to that conclusion. The broadcaster in Premier League and the party that posted the content on its webpage in Meltwater were both authorised by the copyright holder, so the CJEU could distinguish these cases from the position when illegal content is accessed.

Copyright owners will be hoping that the CJEU does follow the AG’s Opinion. There may be practical difficulties in seeking to enforce their rights against individuals who are streaming illegal content, but a decision that streamers of illegal content are themselves infringing should make it easier for them to obtain blocking orders and other remedies against intermediaries, such as internet service providers, whose services are being used to stream illegal content. The CJEU’s judgment on both of the above issues is expected to be delivered in the next few months.

This article was first published on 1 February 2017 by Digital Business Lawyer.