Linking to copyright works - copyright infringement?

European Union May 16 2017

… Streaming has advanced to deliver media content to computers, mobile devices and televisions without the need to download a media file. This has resulted in the development of media players with pre-installed add-ons containing links to websites streaming copyright works without the consent of the copyright holder.

In the face of such technological advances, the Courts have considered whether copyright is infringed by providing links to copyright works and/or accessing copyright works via links.

On 26 April 2017, the Court of Justice of the European Union (CJEU) handed down its latest judgment on such matters in Filmspieler C-527/15. Filmspieler concerned the supply and use of multimedia players with pre-installed links to unauthorised streams of copyright works. The CJEU held that the supply of these media players infringed a copyright holder’s communication right and also stated that users of unlawful streams may also be liable for copyright infringement by infringing the copyright holder’s reproduction right…

Filmspieler

In Filmspieler, the CJEU:

extended the scope of “communication to the public” beyond the posting of links on web pages to include the sale of a multimedia players with pre-installed add-ons containing links to websites with unauthorised 3rd party copyright works; and
provided clarification on assessing whether the link is posted the profit.

… the Directive provides that the “mere provision of physical facilities” is not a “communication to the public”. The CJEU held that the sale of the multimedia players went beyond the mere provision of physical facilities because:

with full knowledge of the consequences, the Defendant pre-installed add-ons containing links that enabled purchasers to access copyright works without the copyright holder’s consent; and
the streaming websites to which the multimedia player was linked were not readily identifiable by the public.

The CJEU held that, by the above actions, the defendant intervened to give access, to the purchasers of the multimedia player, to copyright works without each copyright holder’s consent. The CJEU also held that this was a communication to a “public” because it was aimed at an indeterminate large number of persons, i.e. “all persons who could potentially acquire that media player and have an internet connection”.

The CJEU determined that this was a “new public” by applying GS Media [GS Media BV v Sanoma Media Netherlands BV, C-160/15]:

firstly, the defendant had full knowledge that the pre-installed add-ons containing links gave access to copyright works published without each copyright holder’s consent – the defendant, in fact, advertised the media player as doing so; and
the media player was also supplied with a view to making a profit and the rebuttable presumption could not be rebutted. The CJEU clarified that the context in which the link has been provided should be considered when determining whether the link was posted “for profit”. In this case, “the main attraction of such a multimedia player for potential purchasers lies precisely in the fact that add-ons are pre-installed on it which enables users to gain access to sites on which copyright-protected films are made available without the consent of the copyright holders”. It appears that the concept of “for profit” seeks to distinguish between an average individual internet user (who may inadvertently and innocently post links to copyright works published without the copyright holder’s consent) and a commercial party.

Application for internet users – Meltwater [Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd, C-360/13] and Filmspieler

In Meltwater, the CJEU held that copies created while internet browsing, i.e. on-screen copies and cached copies on a computer’s hard-drive were temporary copies and covered by the exception in that they met the requirements of Article 5 (1) and (5) of the Directive. As such, browsers of the internet users browsing the internet would not infringe copyright by clicking links.

In Filmspieler, the CJEU considered the question of whether the temporary copies exception applies to the acts of temporary reproduction, on a multimedia player, of a copyright work streamed from a third party website offering the work without the copyright holder’s consent.

Applying Article 5 (1) of the Directive, the CJEU held that such reproduction was not solely for the purpose of enabling a transmission in a network between third parties by an intermediary. As such, the question was whether the pertinent question was whether the reproduction was solely for the purpose of enabling a lawful use of the work. Lawful use means a use that is authorised by the copyright holder or a use that is not restricted by relevant legislation.

The CJEU held that this was not a lawful use. The CJEU held that purchasers of the media players would deliberately, and in full knowledge of the consequences, take advantage of a free and unauthorised offer of copyright works. To this end, the CJEU relied on the advertising of the multimedia player and its main attraction being the pre-installed add-ons…

Based on the CJEU’s decision in Filmspieler, it appears that individuals streaming unauthorised copies of copyright works via multimedia players with pre-installed add-ons may be exposed to a claim of copyright infringement…

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