AG spells out bad news for Filmspeler and good news for right holders

The Advocate General of the EU (AG) has given the opinion that the sale of multimedia players with installed add-ons containing hyperlinks to websites hosting unauthorised content infringed copyright (Case C-527/15: Stichting Brein v Jack Frederik Wullems, currently trading under the name Filmspeler).

Business impact

This opinion is good news for right holders and broadcasters as the AG has come down hard on the sale of multimedia players pre-installed with the ability to access pirated material. This opinion targets any similar operation that seeks to unfairly compete with licensed and authorised services.

Overview

Stichting Brein is a foundation involved in the protection of copyright and other related rights. They commenced proceedings against Jack Frederick Wullems due to his sale of various models of a multimedia player named ‘filmspeler’.

When the multimedia player is connected to the internet and a screen (such as a television), the user is able to stream image and sound from a web portal or website.

Mr Wullems installed software on his devices which makes it possible to open files through a user-friendly user interface via menu structures that can be used by anyone. He also installed add-ons (separate software files created by third parties and freely available on the internet) which he integrated into the user interface.

The add-ons contain hyperlinks which, if clicked, redirect the user to streaming websites, controlled by third parties, on which films, television series and (live) sporting events can be enjoyed free of charge, with or without the authorisation of the right holders.

Mr Wullems advertised his products by means of the following promotional slogans:

• “Never again pay for films, series, sport, directly available without advertisements and waiting time. (no subscription fees, plug and play) Netflix is now past tense!”
• “Want to watch free films, series, sport without having to pay? Who doesn’t?!”
• “Never have to go to the cinema again thanks to our optimised XBMC software. Free HD films and series, including films recently shown in cinemas, thanks to XBMC.”

Questions

 It was put forward by Stichting Brein that, following the case of GS Media[1], Wullems was carrying out a ‘communication to the public’ by selling the multimedia players contrary to the InfoSoc Directive (Directive 2001/29/EC) (Directive).  Wullems maintained that the Directive’s temporary copying defence applied, meaning the court had to rule on the meaning of ‘lawful use’.  As a result the Dutch District Court made reference to the Court of Justice of the European Union on the following questions:

1. Must Article 3(1) of the Directive be interpreted as meaning that there is “a communication to the  public” within the meaning of that provision, when someone sells a product (mediaplayer) in which he has installed add-ons containing hyperlinks to websites on which copyright-protected works, such as films, series and live broadcasts are made directly accessible, without the authorisation of the right holders?

2. Does it make any difference:

• whether the copyright-protected works as a whole have not previously been published on the internet or have been published only through subscriptions with the authorisation of the right holder?
• whether the add-ons containing hyperlinks to websites on which copyright-protected works are made directly accessible without the authorisation of the right holders are freely available and can also be installed in the mediaplayer by the users themselves?
• whether the websites and thus the copyright-protected works made accessible thereon — without the authorisation of the right holders — can also be accessed by the public without the mediaplayer?

3. Should Article 5 of the Directive be interpreted as meaning that there is no “lawful use” within the meaning of Article 5(1)(b) of that Directive if a temporary reproduction is made by an end user during the streaming of a copyright-protected work from a third-party website where that copyright-protected work is offered without the authorisation of the right holder(s)?

4. If the answer to the third question is in the negative, is the making of a temporary reproduction by an end user during the streaming of a copyright-protected work from a website where that copyright-protected work is offered without the authorisation of the right holder(s) then contrary to the “three-step test” referred to in Article 5(5) of the Directive?

Decision

Questions 1 and 2

The AG took the first two questions together, and applying criteria from the recent GS Media case, concluded that there was a communication to the public.  This was because Mr Wullems had (i) installed the add-ons containing the hyperlinks to the websites allowing access to protected works; (ii) he either was or should have been aware that some of these add-ons had links to unauthorised content; and (iii) he was operating in pursuit of profit through sale of the multimedia player.

The AG went onto reject the arguments that (i) the sale of a multimedia player could not be likened to the provision of hyperlinks on a website (as was the case in GS Media); and (ii) that the concept of ‘communication to the public’ could not extend to cover the sale of multimedia players.

This was on the grounds that Wullem’s marketing of the multimedia player did more than present the device as a technical accessory that merely enables a communication, but rather provided inseparably, the necessary hardware and software aimed directly at enabling purchasers to access copyright-protected works on the internet without the consent of right holders.  This immediate access was part of the added value of the service that the customer specifically paid for.

As a result it was held that there was no difference between posting hyperlinks to protected works on a website and installing hyperlinks in a multimedia player specifically designed for use with the internet.

Having concluded there had been a communication to the public, in accordance with the Directive, it had to be decided whether this was a ‘new’ public. The AG asserted that the multimedia player provided an undeniable advantage for a significant portion of the public, namely persons not particularly skilled at using the internet to find illegal sites for watching films and television series.  This portion of the public may well prefer the filmspeler’s user friendly interface.  Moreover, regardless of this act, the public to which the device was directed is one the right holders had not intended when authorising access to the works, or at least did so only behind a pay-wall or subscription service.  Therefore the AG concluded that the condition for a ‘new public’ has been satisfied.

Questions 3 and 4

 The answer to questions 3 and 4 concerned the compatibility of the conduct of an end user with the Directive – namely whether there can be ‘lawful use’ when making temporary copies by streaming items through the filmspeler onto a user’s screen.

The AG acknowledged that the key factor in GS Media concerned the subjective component of whether the user had knowledge of the activity being unlawful, but that this was more appropriate for excluding personal liability.  In the AG’s opinion, this ‘use’ is objectively unlawful, even if the subjective component of knowledge can exclude personal liability.

As a result the AG concluded that as the protected works the mediaplayer provided access to were not authorised by the right holders, an end user using the device could not be consistent with ‘lawful use’ for the purpose of Article 5(1)(b) of the Directive.

The AG went on to note that even if use of the mediaplayer was lawful, the conditions of the three step test laid out in Article 5(5) would not be satisfied.

Calum Bryant, Trainee Solicitor, Simkins LLP