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Communication to the public: The Pirate Bay

  • United Kingdom
  • Technology, Media and Telecoms - General

15-11-2017

Précis

The question of who is infringing copyright and who is merely enabling an infringement by others in the context of platforms has recently been addressed by the CJEU in Stichting Brein v Ziggo in a decision handed down on 14 June 2017.

The case concerned the Pirate Bay (TPB), a company founded in Sweden in 2003 which is one of the most popular platforms for BitTorrent P2P file sharing.

In the TPB case, the CJEU found that managing and making available an online platform (i.e. TPB) for sharing copyright-protected works is an act of communication to the public under the Copyright Directive (2001/29 art 3(1)) and therefore can amount to copyright infringement. Even if the works in question are placed online by the users of the platform using BitTorrent technology, the operators of the platform play an essential role in making those works available. Without the actions of the operators the works could not be shared by the users on the internet, or, at least, sharing them would prove to be more complex.

What?

Background

The case arose originally in the Netherlands where Stichting Brein, an anti-piracy organisation sought an order requiring certain ISPs, Ziggo and XS4ALL, to block access to the TPB platform. The Supreme Court of the Netherlands referred questions to the CJEU on the basis that it was unclear whether they could determine with any certainty if the platform communicates works to the public, because, unlike in previous cases, TPB did not hold, upload, or transmit any content itself, but created and maintained a system where users could share works present on their own computers.

Accordingly, the Dutch court posed the following questions to the CJEU:-

  1. Is there a communication to the public within the meaning of Article 3(1) of Directive 2001/29 by the operator of a website, if no protected works are available on that website, but a system exists … by means of which metadata on protected works which are present on the users’ computers are indexed and categorised for users, so that the users can trace and upload and download the protected works on the basis thereof?
  2. If Question 1 is answered in the negative:

Do Article 8(3) of Directive 2001/29 and Article 11 of Directive 2004/48 offer any scope for obtaining an injunction against an intermediary as referred to in those provisions, if that intermediary facilitates the infringing acts of third parties in the way referred to in Question 1?’

Judgment

The CJEU considered these questions in light of what it saw to be the principal objective of the Copyright Directive - to establish a high level of protection for rights holders. The CJEU approached the issue through its now familiar formula for finding a communication to the public - according to this approach, infringement requires two cumulative elements (i) an ‘act of communication’ of a work and (ii) the communication of that work to a ‘public’.

As previous case law such as Svensson and Filmspeler has indicated, the existence of an act of communication will depend on whether the user has played an indispensable role through a deliberate intervention. The user must have intervened, in full knowledge of the consequences of their actions, to give access to a protected work.

In this regard, TPB had indexed torrent files to enable users to share specific files with full knowledge of the consequence of that conduct. Indeed, TPB indexed files into particular categories based on the type of work, its genre and popularity. They also deleted obsolete and faulty files and filtered some content.  As such, the CJEU considered that the operators of TPB were not merely providing physical facilities for enabling or making a communication to the public. Accordingly, the CJEU’s ruling stated that ‘the making available and management of an online sharing platform must be considered to be an act of communication for the purposes of the directive’.

In relation to the second element of ‘public’, as established in earlier case law, the CJEU explained that this refers to a group of people of an indeterminate number that is of a certain, not insignificant, size. Given that TPB is used by a considerable number of peers (in August 2017 the site had 3,516,000 daily unique visitors) this criterion was easily met. Indeed, TPB had made claims on their platform that they had several dozens of millions of ‘peers’. 

In line with the CJEU’s previous decisions, it is also necessary that the public is a ‘new public’, i.e. not taken into account by the copyright holder when the initial communication of the work to the public was made. In this regard, it was clear that the works indexed on TPB’s sites were being published without the copyright holders’ authorisation, and it followed that the communication was to a ‘new public’.

As the CJEU concluded that both conditions had been satisfied, the CJEU concluded that TPB does indeed communicate works to the public. The CJEU commented that a communication to the public should be interpreted broadly. Consequently, the second question submitted by the Dutch Court on whether an injunction can be ordered to block access to a website which does not itself engage in direct copyright infringement was not addressed.

So what?

The CJEU has now considered what constitutes a communication to the public in a number of cases, and this concept is interpreted ever more broadly. This case follows the trajectory of recent CJEU decisions by broadening this concept further. As such, it appears to strengthen the position of rights holders who would like to see TPB and similar websites blocked across Europe.

In relation to the significance of the TPB case in the UK, as TPB has been blocked for a considerable period of time by the main ISPs in the UK, it would appear that the relevance of this decision from a UK perspective is likely to be its application in relation to operators of platforms similar to TPB. It is relatively clear from the TPB decision that the operators of such platforms will no longer be able to contend that they are innocent of copyright infringement and its solely their users who infringe copyright.

The CJEU has now sent the case back to the referring Court in the Netherlands for a decision on the original request for the order for the ISPs to block access to TPB.

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