The ruling in C-610/15 Stichting Brein (link)

This request for a preliminary ruling was made in proceedings where Stichting Brein (SB), an anti-piracy organisation in the Netherlands, sought an injunction against internet access providers to block the domain name and IP addresses of The Pirate Bay (TPB).

The Dutch Supreme Court asked whether there was “a communication to the public within the meaning of Article 3(1) of Directive 2001/29 (InfoSoc Directive) 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?”

The CJEU answered yes, the making available and management of an online sharing platform, such as TPB, constitutes a ‘communication to the public’ (para 47). Some important aspects of the decision are highlighted below.

Act of communication

The CJEU held that the operators of an online sharing platform, such as TPB, were making an act of communication, despite the works being placed online on the platform by users themselves. (paras 36 and 39) By making available and managing an online sharing platform, the operators of that platform “intervene, with full knowledge of the consequences of their conduct, to provide access to protected works, by indexing on that platform torrent files which allow users of the platform to locate those works and to share them within the context of a peer-to-peer network” (para 36).

Interestingly, the CJEU relies on the fact that, absent the intervention, “at the very least, sharing them [the works] on the internet would prove to be more complex” (para 36). This is an extension of the often stated principle that absent an intervention, users “would not, in principle, be able to enjoy the broadcast work” (C‑160/15 GS Media, para 35, available here). The principle now appears to include instances where, absent the intervention, it would be difficult or complex for users to access the relevant work(s).

Communication to a ‘public’

Curiously, the CJEU assessed whether there was a communication to a new public. This may not have been necessary because, as Attorney General Szpuna indicated, communication through peer-to-peer networks is a different technical means to that used for the initial communication (C‑610/15 Opinion, para 47, available here).

In considering the new public criterion, the Court held that it was satisfied because the operators of the online sharing platform TPB “could not be unaware that this platform provides access to works published without the consent of the rightholders” (para 45). This appears to include a requirement of actual knowledge, rather than any rebuttable presumption as found in GS Media.

The implications for the UK

This case is significant because it broadens the scope of primary infringement to include intermediaries which enable users to share content, such as TPB.

As primary infringement is widely harmonised among the EU member states, this decision affects the interpretation of the ‘communication to the public’ right contained in s20 of the Copyright, Designs and Patents Act 1988.