European Union: Court Of Justice Of European Union Holds That Multimedia Players Integrating Hyperlinks To Movies Infringe Copyright

Last Updated: 24 May 2017
Article by Thibaut D'hulst

On 26 April 2017, the Court of Justice of the European Union (the "ECJ") held in case C-527/15 that the sale of multimedia players enabling movies illegally available on the internet to be viewed easily and for free on a television screen, qualifies as a "communication to the public" within the meaning of Article 3(1) of Directive 2001/29/EC of 22 May 2001 on the harmonisation of specific aspects of copyright and related rights in the information society ("InfoSoc Directive"). Therefore, such a sale constitutes a copyright infringement. The ECJ thus confirmed the opinion of Advocate General Campos Sanchez-Bordona of 8 December 2016 (See VBB on Belgian Business Law, Volume 2016, No. 12, p. 18, available at

The judgment follows a reference for a preliminary ruling from the District Court of Midden-Nederland ("Referring Court") in proceedings pitting Stichting Brein ("Stichting Brein"), a foundation involved in the protection of copyright and other related rights, against Jack Frederik Wullems ("Mr Wullems"). Mr Wullems developed and sold over the internet various models of multimedia players under the name "Filmspeler". On these players, Mr Wullems had installed an open source software enabling files to be played through a user-friendly interface as well as add-ons with hyperlinks to streaming websites offering free and unrestricted access to digital content without the consent of the right holders. These properties were explicitly advertised to the public.

Before the Referring Court, Stichting Brein argued that, by selling and marketing multimedia players offering hyperlinks to protected works without the right holders' consent, Mr Wullems had made a communication to the public in breach of national copyright rules implementing the InfoSoc Directive. Hence, Stichting Brein sought a cease and desist order against Mr Wullems. The Referring Court stayed the proceedings and referred two questions for a preliminary ruling to the ECJ.   

First, the Referring Court asked the ECJ whether there is a communication to the public, within the meaning of Article 3(1) of the InfoSoc Directive, when the protected work at issue has already been published without the right holder's consent. Recalling the aim of the InfoSoc Directive, i.e. to establish a high level of protection for authors, the ECJ first explained that the concept of "communication to the public" ought to be interpreted broadly. The ECJ then referred to its judgments in cases "Svensson and Others" and "GS Media" (See VBB on Belgian Business Law, Volume 2014, No. 2, p. 6 and Volume 2016, No. 9, p. 15, available at In these cases, the ECJ had held that the availability on a website of clickable links to protected works featuring on another website constituted an act of communication pursuant to Article 3(1) of the InfoSoc Directive. The ECJ applied this reasoning by analogy to Mr Wullems' multimedia players.

The ECJ added that Mr Wullems had installed the add-ons on his devices intentionally and in full knowledge of the consequences. For the ECJ, this behaviour goes beyond the mere provision of physical facilities enabling or making a communication within the meaning of the InfoSoc Directive. In particular, this is because the streaming websites to which the hyperlinks referred to were not readily identifiable by the public and changed frequently.

The ECJ then went on to examine whether the communication was made to a "public" as is required to qualify for protection under the InfoSoc Directive. It found that the communication at issue covered all potential buyers with an internet connection, i.e. an indeterminate, yet potentially large, number of persons. Hence, the ECJ reasoned that the sale of multimedia players similar to the one at issue falls within the concept of "communication to the public" referred to in Article 3(1) of the InfoSoc Directive.

Second, the Referring Court sought guidance as to whether streaming (i.e., the temporary reproduction made by an end-user of a copyright-protected work from a third party website) can be regarded as a "lawful use" within the meaning of Article 5(1)(b) of the InfoSoc Directive, if that copyright-protected work is offered without the right holder's authorisation.

Under Article 5(1) of the InfoSoc Directive, an act of reproduction will be exempt from the reproduction right provided in Article 2 if it satisfies the following criteria: (i) it is temporary; (ii) it is transient or incidental; (iii) it is an integral and essential part of a technological process; (iv) its sole purpose is to enable a transmission in a network between third parties by an intermediary or a lawful use of a protected work; and (v) it does not have any independent economic significance. Additionally, pursuant to Article 5(5) of the InfoSoc Directive, the above exemption will not apply if the act of reproduction at stake conflicts with the normal exploitation of the work, or unreasonably prejudices the legitimate interests of the right holder.

Relying on the above provisions, the ECJ held that the temporary reproduction made by end-users with the help of the multimedia players was not a "lawful use" since: (i) the use of the protected work was not authorised by the right holder; (ii) temporary acts of reproduction such as those at issue adversely affect the normal exploitation of the protected works at stake, since this practice causes unreasonable prejudice to the legitimate interests of the right holders given its likely effect of diminishing the number of lawful transactions involving the protected works. Consequently, the ECJ held that the acts of reproduction under review did not satisfy the conditions set out in Article 5(1) and (5) of the InfoSoc Directive.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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