European Court Of Justice Tightens Screws On “Streaming”

In a judgment this week, the European Court of Justice ruled that “the sale of a multimedia player which enables films that are available illegally on the internet to be viewed easily and for free on a television screen could constitute an infringement of copyright” (C:2017:300).

In the case referred to the Luxembourg Court from the District Court of Midden-Nederland in the Netherlands, a foundation representing copyright holders, Stichting Brein, had filed a complaint against Dutch entrepreneur Jack Frederik Wullems.

Wullems sold multimedia players that enabled users to easily tune into internet streaming platforms from their TV sets and advertised his “Filmspeler” especially for the possibility to access copyrighted material.

It could not “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,” the judges rules.

They therefore supported the local court’s interpretation that Wullems’ activity constituted a “communication to the public” without consent of the copyright holders, according Article 3(1) of the European Union Copyright Directive.

Experts also pointed to the broader meaning of the judgment with regard to streaming. Contrary to downloading the illegal nature of use of streaming to access copyright protected content so far has still be disputed.

Other than downloading a movie on one’s hard drive, streaming was interpreted by some as an only transient copy. Now the highest EU judges have declared that obtaining a copyright-protected work by streaming without consent of a copyright owner would not satisfy the exception clauses of articles 5 (1) and 5 (5) on temporary acts of reproduction.

Instead, five conditions cumulatively have to be met to allow for an exception, “namely (1) the act is 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 is 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 any independent economic significance.”

Experts warn the ruling could set a precedence for stricter rulings on streaming than before.