Landmark CJEU ruling on the sale of multimedia players which stream pirated content

At the end of April 2017, the European Court of Justice (‘CJEU’) issued a landmark ruling concluding that the sale of a multimedia player, which contains pre-installed add-ons that provide links to illegal streaming websites, amounts to a copyright infringement. Moreover, the sale of a multimedia player which allows viewers to watch pirated content online could constitute an infringement of copyright. The ruling has shed considerable light on the legal grey area of TV boxes which provide online streaming services.

The case was initially referred to the CJEU by a district court in the Netherlands after Stichting Brein, an anti-piracy foundation, had initiated proceedings to try and prohibit Mr Wullems from marketing and selling multimedia players and also to order him not to provide links that give consumers illegal access to protected digital content. Essentially, Mr Wullems conducted his business by selling different types of multimedia player models which operated as a means of communication between a source of audio-visual data and a television screen.

Stichting Brein maintained that, when Mr Wullems was marketing access to protected works, he was making a ‘communication to the public’ which breached Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (‘Directive’), which was also transposed into Dutch copyright law. However, Mr Wullems insisted that his business activities relating to such streaming fell within the ambit of the exceptions of the “reproduction right” provided for in the Directive.

In its judgment, the CJEU held that it has always stressed the importance of providing a broad interpretation of the term ‘a communication to the public’. This is in accordance with the Directive’s aim of safeguarding the rights of copyright owners and their content. The CJEU also ruled with respect to the exception set out in Article 5(1) of the Directive. It is pertinent to note that there are five conditions which must be fulfilled in order to be exempt, namely the following:

1. The act must be temporary;

2. It is transient or incidental;

3. It is an integral and technical part of a technological process;

4. The sole purpose of that process must be to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or subject matter; and

5. That act does not have an independent economic significance.

After considering the above-mentioned conditions, the CJEU ruled that in this case Mr Wullems could not be exempted from the right of reproduction. The CJEU noted 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.’

Since this case was a reference for a preliminary ruling, it will be up to the Dutch district court to declare that following the CJEU ruling, Mr Wullems’ business activities constitute an infringement of copyright.

In light of the above, such streaming services, which have become commonplace even in Malta (e.g. Kodi and IPTV services) will need to be phased out as they are in direct violation of EU copyright law. This ruling seemingly indicates the CJEU’s support to all those national European courts currently on a mission to crack down on the violation of copyright laws by the audio-visual industry.

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