Case C-527/15, Stichting Brein – copyright brain-teasers about media players

People are using ‘media players’ to watch films and television via streaming websites. However, what is to be done where the owner of the copyright in the films has not consented to his films being available on those websites? Is it possible for him to go after not the website owner but the manufacturers of media players by claiming that it is the media player machines that are communicating copyright works to the public? And if so, then can the manufacturer of a media player escape liability by raising a defence that his machine is merely enabling a user to make a ‘lawful use’ copy of the copyright-protected work for the purposes of the EU’s ‘InfoSoc’ Directive 2001/29?

Background
Stichting Brein is a Dutch body that was set up by the film industry and various publishing houses for the purposes of protecting their commercial interests, particularly when it comes to copyright.

In essence, Brein is wanting to stop people from watching illegal copies of films. To that end, it is going after companies that make ‘media players’. A media player is just a piece of kit that contains software that ‘sits’ in-between a ‘source’ image or sound (often on the Internet), and a person’s television or computer screen.

Because one part of a media player is connected to the Internet and another part connects to the screen, the user of a media player gets to see a simple menu on their screen. Clicking on an item in the menu will activate a hyperlink. This will then allow the computer in the media player to retrieve information from a specific page or website that is ‘streaming’ on the Internet – be it information containing a copy of a film, or a broadcast.

Now, Brein assumes that people are using media players just to watch copyright-protected films and broadcasts illegally. It has therefore decided to sue a company that makes and sells these media players, and whose advertising claims that users can now watch their favourite films and television for free – and, for an extra fee, even watch football matches.

In this simple factual scenario, Brein has generated litigation with 11 heads of claim.

At the District Court of Midden-Nederland
In June 2015, the Dutch District Court of Midden-Nederland thought that some of those heads of claim involved issues that would require a preliminary reference being made to the CJEU.

Two major legal issues troubled the district court judges. First, are copyright-holder’s works being ‘communicated to the public’? And, second, is there a ‘lawful use’ defence? The answers to both questions appeared to be governed by the EU’s InfoSoc Directive (Articles 3, and 5(1) respectively) but not the CJEU’s existing case law interpreting those provisions.

A communication to the public?
Existing case law did not seem to apply to the present situation. For whereas the District Court cited and recalled paras 14-32 (minus para 17) from the judgment in Case C-466/12, Svensson the Dutch court also noted that Svensson was all about a situation in which material had been put on an internet site and published with the rightholder’s consent. That was not the case here for media players were accessing copyright-protected films put on websites without the right holders’ consent.

Nor did the present situation appear to be covered by a dispute that is currently pending before the CJEU. That is to say, the GS Media case involves a website-owner, whose website allowed users to click on hyperlinks put on the website – hyperlinks that then instructed user’s computers to get information from other specific websites.

The present situation involving media players and hyperlinks was slightly different. Admittedly, the media player did come with a menu that already contained some hyperlinks. (If the user of the media player subsequently clicked on a hyperlink, then the computer in the media player would in effect go and get the information available from the destination mentioned in the hyperlink.)

However, the situation with a media player is slightly more complex in so far as the owner of a media player can also install his own ‘add ons’ – and these are widely available on the Internet. As a result, if the user does then install an ‘add on’ into his media player, then completely different hyperlinks will be included in the media-player’s menu. Hence, the novelty here is that it is the manufacturer of the media player who has no control over which hyperlinks the user installs.

Since it will be the user who decides which extra ‘add ons’ to install, and thus which hyperlinks he is going to use, the Dutch District Court wants to know if the manufacturer of the media player can really be said to be communicating works to the public, especially since the websites which are then ‘streaming’ the copyright-protected work back to the media player are basically websites that can be easily be visited by people even without the use of a media player.

A ‘lawful user’ defence?
However, a second legal also troubled the judges in the Dutch District Court of Midden Nederland. The source of the trouble was the fact that the manufacturer of the media player was also running a separate defence, and that defence was based in Dutch copyright law.

It is a peculiar feature of Dutch copyright law that there will be no copyright-relevant act of ‘reproduction’ in a situation in which a person makes a copy of a work from an illicit source – this scenario falling within the scope of Dutch copyright law’s concept of ‘lawful use’.

Against that backdrop, the manufacturer of the media player is maintaining that no legal liability will arise even if the user’s hyperlinks result in the manufacturer’s media-player retrieving copyright-protected films from an illicit website – for all his machine is doing is enabling a ‘lawful use’ of a copyright-protected work to take place. Hence, no legal liability will arise.

The Dutch District Court reckoned that this was novel situation not previously addressed in the CJEU’s existing case law. Namely, the Dutch district court dismissed any relevance to what the CJEU had said in Joined Cases C-403/08 and C-429/08, Football Association Premier League Ltd (Grand Chamber) ECLI:EU:C:2011:631 paras 168-172, plus para 179. The reason for the dismissal was that that case concerned a situation in which a right holder was still being paid – and that was not the case with media players. Equally, for the same remuneration reason, the Dutch District Court also dismissed any relevance to what the CJEU had said in Case C-360/13, Public Relations Consultants Association (also known in England and Wales as the ‘Meltwater’ litigation).

Faced with no directly relevant case law, the Dutch judges now want to know from the CJEU whether this is, or is not, a situation covered by the concept of ‘lawful use’ in Article 5(b) of the EU’s InfoSoc Directive. After all, only ‘temporary copies’ are being generated by the end-user, who is streaming a copyright-protected work from a third party’s website.

However, if this should turn out to be a situation that is not covered by the concept of ‘lawful use’, then the Dutch court would also like to know from the CJEU whether those temporary copies are sufficient to fall foul of the ‘three step test’ enshrined in Article 5(5) of the InfoSoc Directive.

In view of these legal uncertainties surrounding the concepts of a ‘communication to the public’ and ‘lawful use’, a three-judge bench in the Dutch District Court of Midden Nederland has therefore decided to make a preliminary reference to the CJEU.

Questions Referred
The Curia website has yet to publish the official translation of the questions asked.

Update – 16 November 2015
Stichting Brein has persuaded another Dutch court to make a preliminary reference to the CJEU. The case has yet to be docketed by the CJEU but in anticipation of the docket number here is my summary of that reference.
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Update – 20 November 2015
The update of 16 November 2015 has moved to Case C-610/15, Stichting Brein – seeking website blocks to stop peer to peer technology.

Update – 25 November 2015
According to the website of the UK’s Intellectual Property Office, the questions which have been asked by the Dutch district court are:

1. Must Article 3(1) of the Copyright 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 only been published 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?

Update – 4 September 2016
The Second Chamber is due to hear the Dutch ‘mediaplayer’ case on 29 September 2016.

Update – 27 September 2016
There is currently a case about Kodi boxes which is pending at Teeside Crown Court in England. Further details are available on the BBC’s news website.

Update – 6 November 2016
The Opinion of Advocate General Campos Sánchez-Bordona is due on 8 December 2016.

Update – 8 February 2017
The BBC website reports two developments about Kodi boxes. The first, dated 17 January 2017, is that a not guilty plea was entered in the case at Teeside Crown Court. The second development was that five arrests were made early this morning; the people were subsequently released on bail.