The sale of a multimedia player on which add-ons are installed that link to websites on which protected works are made available to internet users without the consent of the copyright holders, constitutes ‘communication to the public’: the provision constitutes ‘intervention consisting of an act of communication’ and not a ‘mere’ provision of physical facilities.
"37. The Court has already held, in that regard, that the provision, on a website, of clickable links to protected works published without any access restrictions on another site, affords users of the first site direct access to those works (judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraph 18; see also, to that effect, order of 21 October 2014, BestWater International, C‑348/13, EU:C:2014:2315, paragraph 15, and the judgment of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 43).
38. That is also the case for the sale of a multimedia player, such as that at issue in the main proceedings.
39. It is true, as recital 27 of Directive 2001/29 states, that the mere provision of physical facilities for enabling or making a communication does not in itself amount to ‘communication’ within the meaning of that directive.
40. The Court has nevertheless held, in that respect, as regards the provision of television sets in hotel rooms, that while the ‘mere provision of physical facilities’ does not as such amount to a communication to the public within the meaning of Directive 2001/29, it remains the case that that facility may make public access to broadcast works technically possible. Therefore, if, by means of television sets thus installed, the hotel distributes the signal to customers staying in its rooms, then communication to the public takes place, irrespective of the technique used to transmit the signal (judgment of 7 December 2006, SGAE, C‑306/05, EU:C:2006:764, paragraph 46).
41. In the same way, it must be held that the present case does not concern a situation of the ‘mere’ provision of physical facilities for enabling or making a communication. As the Advocate General noted in paragraphs 53 and 54 of his opinion, Mr Wullems, with full knowledge of the consequences of his conduct, pre-installs onto the ‘filmspeler’ multimedia player that he markets add-ons that specifically enable purchasers to have access to protected works published — without the consent of the copyright holders of those works — on streaming websites and enable those purchasers to watch those works on their television screens (see, by analogy, judgment of 7 December 2006, SGAE, C‑306/05, EU:C:2006:764, paragraph 42). That intervention enabling a direct link to be established between websites broadcasting counterfeit works and purchasers of the multimedia player, without which the purchasers would find it difficult to benefit from those protected works, is quite different from the mere provision of physical facilities, referred to in recital 27 of Directive 2001/29. In that regard, it is clear from the observations presented to the Court that the streaming websites at issue in the main proceedings are not readily identifiable by the public and the majority of them change frequently.
42. Consequently, it must be held that the provision of a multimedia player such as that at issue in the main proceedings enables, in view of the add-ons pre-installed on it, access via structured menus to links that those add-ons which, when activated by the remote control of that multimedia player, offer its users direct access to protected works without the consent of the copyright holders and must be regarded as an act of communication within the meaning of Article 3(1) of Directive 2001/29.
- ‘communication to the public’ by giving access to unauthorized content with a profit motive
In that regard, the Court held that as soon as and as long as that work is freely available on the website to which the hyperlink allows access, it must be considered that, where the copyright holders of that work have consented to such a communication, they have included all internet users as the public, such that the communication in question is not made to a new public. However, the same finding cannot be deduced from those judgments failing such an authorisation (see to that effect, the judgment of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraphs 42 and 43).
50. In the present case, it is common ground that the sale of the ‘filmerspeler’ multimedia player was made in full knowledge of the fact that the add-ons containing hyperlinks pre-installed on that player gave access to works published illegally on the internet. As was noted in paragraph 18 above, the advertising of that multimedia player specifically stated that it made it possible, in particular, to watch on a television screen, freely and easily, audiovisual material available on the internet without the consent of the copyright holders.
51. In addition, it cannot be disputed that the multimedia player is supplied with a view to making a profit, the price for the multimedia player being paid in particular to obtain direct access to protected works available on streaming websites without the consent of the copyright holders. As the Portuguese Government has pointed out, 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 enable users to gain access to sites on which copyright-protected films are made available without the consent of the copyright holders.
52. Therefore, it is necessary to hold that the sale of such a multimedia player constitutes a ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29."
Temporary reproduction of a copyright protected work on a multimedia player by streaming of unauthorized content not exempted from the reproduction right: conditions set out in article 5 of directive 2001/29 are not satisfied, since those acts can adversely affect the normal exploitation of those works and causes unreasonable prejudice to the legitimate interests of the right holder.
"By contrast, in circumstances such as those at issue in the main proceedings, and having regard, in particular, to the content of the advertising of the multimedia player at issue mentioned in paragraph 18 above and the fact, noted in paragraph 51 above, that the main attraction of that player for potential purchasers is the pre-installation of the add-ons concerned, it must be held that it is, as a rule, deliberately and in full knowledge of the circumstances that the purchaser of such a player accesses a free and unauthorised offer of protected works.
70. It must also be held that, as a rule, temporary acts of reproduction, on a multimedia player such as that at issue in the main proceedings, of copyright-protected works obtained from streaming websites belonging to third parties offering those works without the consent of the copyright holders are such as to adversely affect the normal exploitation of those works and causes unreasonable prejudice to the legitimate interests of the right holder, because, as the Advocate General observed in points 78 and 79 of his opinion, that practice would usually result in a diminution of lawful transactions relating to the protected works, which would cause unreasonable prejudice to copyright holders (see, to that effect, judgment of 10 April 2014, ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph 39).
71. It follows that those acts do not satisfy the conditions set out in Article 5(1) and (5) of Directive 2001/29.
72. In the light of all the foregoing considerations, the answer to the third and fourth questions referred is that Article 5(1) and (5) of Directive 2001/29 must be interpreted as meaning that acts of temporary reproduction, on an multimedia player, such as that at issue in the main proceedings, of a copyright-protected work obtained by streaming from a website belonging to a third party offering that work without the consent of the copyright holder does not satisfy the conditions set out in those provisions."
IPPT20170426, CJEU, Brein v Filmspeler
C‑527/15 - ECLI:EU:C:2017:300