By ruling of 26 April (case C-527/15), the European Court of Justice (ECJ) stated on a reference for a preliminary ruling proposed by a Dutch court in the context of a dispute between Stichting Brein, a foundation protecting the interests of copyright holders, and a seller of multimedia players allowing the TV streaming of copyright-protected works unlawfully available online, by means of pre-installed add-ons directly linking to third-party websites on which such works are hosted. In particular, the Dutch judges asked the ECJ to establish, on one hand, if the sale of the abovementioned devices affects the copyright holders’ right of “communicate to the public” under article 3(1) of Directive 2001/29/EC and, on the other hand, if the unauthorised streaming of copyright-protected works by means of such players, being it a “temporary act of reproduction” should be considered exempt from the holders’ reproduction rights under article 5 of the same directive. About the first issue, with particular reference to the provision of hyperlinks to copyright-protected work unlawfully available online, the ECJ already expressed its view in the ruling regarding the case C-160/15 (discussed here on this blog), mentioned also in this new ruling.

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The ECJ stressed that the concept of communication to the public must be interpreted broadly, given that the Directive establishes a high level of protection for authors, and that there is communication to the public every time there is: a) an act of communication by any technical means; b) a new public, composed of a fairly large number of people, i.e. a public that was not already taken into account by the copyright holders when they authorised the initial communication of their work; and c) other interdependent complementary criteria such as the full knowledge of who makes the communication to give access to protected works to their customers and the profit purpose of the communication.

Firstly, the ECJ recalled that it already stated – in the abovementioned ruling C-160/15 – that providing hyperlinks to copyright-protected works unlawfully available on third-party websites constitutes a communication to the public since it allows direct access to such works to the users. Then, it established that the sale of the players at issue, similarly, constitutes a communication to the public, because it presents all the abovementioned elements. In fact, the ECJ excluded that the sale of such players could be considered a mere provision of physical facilities for making a communication – that does not in itself amount to a communication to the public – given that such players include pre-installed add-ons capable of providing direct access to copyright-protected works as well as the seller’s full knowledge that their customers can unlawfully access such works, as demonstrated by the indications within the relevant advertising material.

Furthermore, the ECJ denied that the streaming broadcasting of copyright-protected works by means of the players on sale, even though it is a temporary act of reproduction, is exempt from the holders’ reproduction rights. In fact, the exemption subsists only if the act of reproducing such works has all the following cumulative elements – to be interpreted strictly – as provided by article 5: i) the act is temporary; ii) it is transient or incidental; iii) it is an integral and essential part of a technological process; iv) the sole purpose of that process is to enable a transmission through a network between third parties by an intermediary or a lawful use of a work or protected subject matter; and v) the act does not have any independent economic significance. Moreover, even if all the necessary elements were confirmed, the exemption would apply only if the act of reproduction was not in conflict with the normal exploitation of the work and did not unreasonably prejudice the legitimate interests of the right holder. In this regard, the ECJ stated that “temporary acts of reproduction, on a multimedia player such as that at issue in the main proceedings, of copyright-protected works (…) without the consent of the copyright holders are such as to adversely affect the normal exploitation of those works” and to cause unreasonable prejudice to the relevant holders, given that such reproductive acts “result in a diminution of lawful transactions relating to the protected works”; hence the exclusion of the exemption in the case at issue.