The Court of Justice of the EU (CJEU)’s Advocate General (AG) Campos Sanchez-Bordona issued his opinion yesterday in the case C‑527/15 Stichting Brein v Jack Frederik Wullems, acting under the name of Filmspeler, which is again a case involving the infamous right to communicate copyright works to the public.

Very briefly, the AG opined that the selling of a mediaplayer with add-ons (i.e. “separate software files created by third parties and freely available on the internet, which [the defendant] had integrated into the XBMC software user interface and which”) containing “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”, amounted to communicating the protected works to the public.  In other words, it infringed copyright.

Notably, the AG also opined that “the streaming of a copyright-protected work cannot be covered by the exception laid down in Article 5(1) of Directive 2001/29 [the Directive on copyright and related rights in the information society, otherwise known as infoSoc Directive], inasmuch as it does not fall within the definition of ‘lawful use’ in subparagraph (b) of that provision and, in any case, fails the three-step test laid down in Article 5(5) of that directive.” The AG’s justification for this conclusion was because, among other things, “the conduct of a person who surfs the internet and visits websites cannot be likened to that of a person who streams protected films and series.” [para. 76].

In a nutshell, this case is not just another case. It comes after GS Media decided by the CJEU on 8 September 2016, as well as the release of the proposal for a new Copyright Directive on 14  September 2016.

As readers will remember, (and as commented about in my previous post here) in GS Media the CJEU had held that (emphasis added):

• In the third place, the Court has held that it is relevant that a ‘communication’, within the meaning of Article 3(1) of Directive 2001/29, is of a profit-making nature. [para. 38]
• when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29. [para. 51]

What does the AG in Stichting Brein say about this presumption?

This is how he understands the test set forth in GS Media:

I shall adopt as the basis for my arguments the propositions previously set down by the Court, namely: (a) the provision of clickable links to protected works must be considered to be ‘making available’ and, therefore, such conduct is an ‘act of communication’; (32) (b) that concept refers to any transmission of the protected works, irrespective of the technical means or process used, (33) and (c) there is a rebuttable presumption that the posting of a hyperlink to a work unlawfully published (without the authorisation of the right holders) on the internet amounts to a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/79, if it is done in pursuit of profit. [para. 42]

At para. 44, the AG has no difficulty in finding that the GS Media’ s test applies to the facts of the case, even if the facts in Stichting Brein are slightly different from the facts in GS Media.

Notably, in Stichting Brein, it is the selling of a mediaplayer to which hyperlinks are integrated that is at stake and not the supply of a link as such. With this said, the defendant in Stichting Brein did not really appear to have ‘clean hands’ or be ‘bona fide’ as he had advertised its mediaplayer with the following words:

• “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.”

In other words, one could have tried to argue that the defendant in Stichting Brein had intervened “in full knowledge of the consequences of its action” (to use the CJEU terminology [para. 53]).

The AG rejects the position of the European Commission (EC), which seems to see in the selling of the mediaplayer the mere provision of a physical facility as per Recital 27 of the infosoc Directive and not a communication to the public. Recital 27 is clear: “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.” [Shouldn’t this make the consideration of knowledge irrelevant?]

That the EC takes such a position in its written observations on the case facts in Stichting Brein is interesting because the EC has not always been tempted by setting some limits to the domain of Article 3(1) of the infosoc Directive (which states that “Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them”). [We might wonder, therefore, which EC exactly is speaking in Stichting Brein?].

Recital 38 of the proposed Copyright Directive, by comparison starts with the following paragraphs:

Where information society service providers store and provide access to the public to copyright protected works or other subject-matter uploaded by their users, thereby going beyond the mere provision of physical facilities and performing an act of communication to the public, they are obliged to conclude licensing agreements with rightholders, unless they are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC of the European Parliament and of the Council. [page 20]

It is thus suggested, as explained in our brief exegesis of the proposed Copyright Directive, which we recently sent to the European Commission and the European Parliament,  that the provision of access to user-generated content by storage [i.e. hosting] providers goes beyond the mere provision of physical facilities and therefore amounts to the communication of protected works to the public. And this would hold true even if the hosting exemption from liability set out in Article 14 of the E-commerce Directive is applicable.

In other words, in Recital 38 of its proposed Directive the EC disregards the fact that the characterisation of an economic activity only leads to a rebuttable presumption! Yet, even AG Campos Sanchez-Bordona acknowledges that it is only a rebuttable presumption!

What is crucial to understand is this: that it is actually important that the GS Media presumption based on “the pursuit of profit” remain a rebuttable presumption. It is important for at least one reason:  presuming knowledge from the characterisation of an economic activity and thereby a prima facie copyright infringement of the right to communicate protected works to the public amounts to imposing upon the seller of the mediaplayer or the hyperlinker an obligation to systematically check whether the mediaplayer integrates links referring to – or more simply to check whether the link refers to – infringing material.

What if we were now concerned with the activity of a user-generated content platform? Deciding that the platform always communicate protected works to the public is imposing upon the platform an obligation to systematically monitor its platform, isn’t it?

Yet, Article 15 of the E-commerce Directive explicitly provides that Member States shall not impose upon intermediary providers (mere conduit, caching and hosting providers) general monitoring obligations. Therefore depending upon the nature of the activity of the provider at stake, the GS Media presumption, should either be ignored or rebutted!

It is true that Recital 38 of the proposed Copyright Directive also seems to suggest that even if a hosting provider should be deemed as communicating works to the public, it could in some cases benefit from Article 14 of the E-commerce Directive and be exempted from (financial) liability if at a minimum it complies with a certain number of conditions.

Does this solve our problems? Maybe not, for at least 3 reasons.

1. It is difficult to argue that Article 14 case law provides legal certainty and it is not sure that Article 14 would always prevent a finding of liability on the basis of constructive knowledge.
2. Recital 38 appears to be an attempt to narrow down the domain of Article 14 anyway.
3. This is where the question of costs becomes relevant. Injunctions also imply costs and Article 14 alone would not suffice to guarantee the non-imposition of general monitoring obligations.

My dear Article 15, you have all the reasons to be hated… or loved!

Sophie Stalla-Bourdillon