On 14 June 2017, the Court of Justice of the European Union (CJEU) handed down its long-awaited judgment in Stichting Brein v Ziggo BV (C-610/15), concerning the activities of controversial file-sharing platform The Pirate Bay (TPB).
In a decision that has been welcomed by copyright owners across Europe, the court ruled that the activities of files-sharing sites such as TPB can constitute primary infringement under the Copyright Directive (2001/29/EC). This follows the recent trend of CJEU decisions in favour of rights-holders, with a broader policy aim of increasing protection for creative industries.
TPB is a well-known, peer-to-peer network, allowing users to share and download films, TV shows and music. Most of this content is unauthorised, which has understandably led to widespread criticism from rights- holders. While TPB does not upload the content itself, it allows users to locate files through a search engine function, indexes the files into categories and genres, and removes faulty files, making the process much more user-friendly.
The case was originally instigated by a Dutch anti-piracy foundation, Stichting Brein, which wanted two internet service providers to block access to TPB.
Following a referral from the Dutch Supreme Court, the key question before the CJEU was whether TPB’s activities could amount to a ‘communication to the public’ (and hence to copyright infringement) under article 3(1) of the Copyright Directive.
In line with the earlier opinion of the advocate general, the CJEU ruled that the making available and management of an online sharing platform must be considered to be an act of communication. In reaching this decision, the CJEU reiterated that the concept of ‘communication to the public’ involves two cumulative components: (1) an act of communication; and (2) communication of that work to a ‘public’:
‘Act of communication’
Even though the works in question are uploaded by users of the platform, the court emphasised that the operators of such platforms play an ‘essential role’ in making the works available. The idea that TPB’s activities amounted to a ‘mere provision’ of physical facilities was dismissed, as the platform indexes the files in such a way to make the material easier to locate and download.
By intervening in this way, the provision and management of the platform by TPB was found to be an act of communication.
There was evidence that TPB is used by a considerable number of people and the communication carried out by TPB was aimed at an indeterminate number of potential recipients.
The court placed significant weight on the fact that TPB ‘could not have been unaware’ of the illegal activity taking place, having been informed that its platform provides access to works published without authorisation. Reference was also made to the fact that TPB operates for profit, generating considerable advertising revenues.
TPB has already been blocked in the UK by the main ISPs, following the judgment of Mr Justice Arnold in Dramatico Entertainment Ltd v British Sky Broadcasting Ltd  EWHC 1152 (Ch).
However, the CJEU’s expansion of the communication to the public right will provide further ammunition to rights-holders to prevent access to file-sharing sites such as TPB more widely across Europe.
Further judicial guidance would be welcomed to determine the precise boundaries of what is to be regarded as an ‘essential role’ on the part of an operator, as it was the specific activities of indexing files, providing search facilities and removing faulty files that proved critical to TPB in this case.
However, it would appear that any action by platform operators that knowingly facilitates access to unauthorised content, making it easier for users to locate and download files, could amount to an infringing communication.
Communication: a hot topic
The decision in Ziggo follows closely in the wake of other significant CJEU rulings in the last 12 months, and the ‘communication to the public’ right is certainly a hot topic in European copyright law at the moment:
GS Media v Sanoma (C-160/15)
In September 2016, the court addressed the issue of hyperlinking to unauthorised works, holding that such activity can be an infringing communication if the person posting knew, or ought to have known, that this provides access to illegal content. It also introduced the controversial idea that there is a rebuttable presumption that those hyperlinking ‘for profit’ have the requisite knowledge.
Pending further guidance from the UK courts, it remains unclear exactly how businesses profiting from hyperlinking, either directly or indirectly, can overcome the presumption that they were aware of the illegal publication.
Rights-holders may, therefore, see this as an opportunity to take enforcement action against profit-making entities that link to unauthorised content, even if such content was originally posted elsewhere.
More recently, in April 2017, the sale of multimedia players with pre-installed add-ons linking to copyright-
protected works came under the spotlight. In another case initiated by Stichting Brein, the CJEU later found that such activity was a communication to the public, as the sales were made in full knowledge that the add-ons gave access to works published illegally on the internet. The court also clarified that streaming of content on the internet should be treated in the same way as unlawful downloads, and cannot benefit from being a temporary act of reproduction.
The combined effect of these recent decisions is to push the boundaries of the communication right in favour of copyright owners, strengthening their hand in the battle against online infringement. The CJEU is moving away from the idea that there needs to be an ‘indispensable intervention’ to constitute an infringing communication, potentially paving the way for a wider range of subjects to be liable for communicating to the public. The court also seems to be recognising the need for European copyright laws to adapt to emerging technologies, such as fully loaded set-top boxes and file-sharing sites, in order to tackle the evolving challenges of digital piracy.
The position remains that the ‘mere provision’ of physical facilities will not in itself constitute an infringing communication, and this may continue to be relied on by those that do not directly communicate copyright works and provide no more than the basic tools.
However, the recurring message coming from Luxembourg is that the CJEU will take a broad view of what is to be regarded as an infringing act of communication, and the knowledge and intent of the communicating party will be a key factor in establishing liability.
While this will not necessarily lead to an immediate decline in digital piracy, the increasing number of legal obstacles will certainly make life more difficult for file-sharing sites and devices linking to illegal content to remain active across Europe.
Questions of course remain as to the implications of Brexit, as UK copyright law would be free to develop independently of the rest of the EU. However, there are likely to be commercial incentives for the UK to maintain close harmonisation of copyright law in today’s digital economy, so we may not see a radical departure from this position any time soon.
Tom Collins is an associate at Stevens & Bolton