In a recent ruling, Stichtung Brein v Jack Frederik Wullems (known as Filmspeler), the Courts of Justice of the European Union (CJEU) held that the temporary reproduction of copyright-protected content on TV multimedia boxes, is considered as an infringement of the right-holders’ rights, particularly the right of communication to the public.
Multimedia TV streaming systems such as Kodi TV boxes, IPTV or Android Boxes, are configured to give access to protected works such as movies, television shows and music. Service providers who sell these systems generally do so without obtaining the required lawful consent from rightholders and without paying royalties.
Essentially the court delved into two distinct questions in Filmspeler, the first being whether streaming movies using such multimedia boxes could be considered as an act of communication to the public, and secondly, and perhaps more importantly, whether such multimedia boxes could benefit from the mandatory “temporary copying” to copyright, contained within the EU’s primary legal instrument in this regard, the Infosoc Directive.
Communication to the Public
In Filmspeler, the CJEU extended the concept of “communication to the public” to those distributing piracy-enabled set-top boxes. The Court noted that while the multimedia player equipment in itself was not illegal, the way the equipment was modified in order to facilitate piracy was.
Filmspeler had installed open source software which integrated add-ons containing hyperlinks which directed users to streaming websites controlled by third parties, thereby granting users access to content without obtaining rightholder consent. This intervention by the defendant was such that without it the users would not have been able to gain access to such works, and hence was indispensable in order for the public, in this case the purchasers of these multimedia boxes, to access such works. By selling such multimedia players linking users to works that were illegally published on the internet, the service provider was furthermore generating a profit .
The CJEU, therefore, concluded that this made them liable for unauthorised acts of ‘communication to the public’ under InfoSoc. Moreover, the provider was found to be fully aware of the consequences of his actions and thus was considered to be wilfully enabling piracy.
Making any sort of copy of a copyright-protected work is part and parcel of the right of reproduction over that work, and requires the authorisation of any rightholders in that work. There are however, a number of exceptions to this general rule, one of which relates to making temporary copies of a work. Infosoc had introduced this exception within EU law, enshrining it as the only mandatory exception to copyright which is applicable throughout the EU, unlike the many other exceptions to copyright provided in Infosoc, such as the exception for educational purposes or the private use exception, which are merely of an optional and discretionary nature.
At first glance, it might seem as a broad exception, as by definition, all that is not permanent, is essentially temporary. So where exactly does one draw the line? And what are the applicable requisites in order for this exception to apply?
Temporariness is supplemented by the other requirements contained within the text of the exception. In order to benefit, the temporary act of reproduction must be “transient or incidental”, it must be “an integral and essential part of a technological process,” and its sole purpose must be “to enable” either “a transmission in a network between third parties by an intermediary” or “a lawful use” and such act of reproduction “must have no independent economic significance.”
These cumulative conditions are further supplemented by the “three-step test” originally introduced by the Berne Convention, and eventually incorporated within Infosoc itself, which require that any exception to copyright must “only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter” and which “do not unreasonably prejudice the legitimate interests of the rightholder.”
The temporary copying exception has been a bone of contention ever since its introduction, and has generated considerable debate both within the courts and outside them. Furthermore, whereas the question relating to the communication to the public essentially concerned the service providers providing the multimedia boxes, the issue of temporary copying was inherently tied to the end-users streaming the content.
In the earlier Meltwater judgment, the CJEU held that internet users who were merely browsing websites were not committing copyright infringement. In Filmspeler, the CJEU was faced with the task of assessing whether the streaming of content could benefit from the temporary copying exception, an issue which had the potential of causing ripple-effects for internet users throughout the EU.
Treading with caution, the CJEU held that it did not consider it necessary to determine whether or not streaming has the “transient and incidental” nature, due to the fact that this would require a highly technical assessment relating to buffering and the making of cached copies, among other things. It further noted, that the case at hand did not involve “forming a general view on streaming,” but rather that it should limit its assessment to the conduct of a user using this particular method (multimedia TV boxes) for accessing protected content.
Infosoc defines “lawful use” as use “authorized [by] a right-holder or permitted by law.” The court stated that in the particular circumstances, when the holders of the relevant intellectual property rights have refused to allow or have restricted, the distribution of the digital content concerned and have not authorised unrestricted communication to the public of that content on websites to which the hyperlinks installed in Filmspeler connect, then it does not qualify as “lawful use” within the meaning of Infosoc.
The court’s decision in this regard was clear; such streaming cannot be covered by the temporary copying exception, since it does not satisfy the requirement of “lawful use” and, in any case, it furthermore found that it failed to satisfy any of the elements required by the three-step test.
While this judgment represents the proverbial death knell for such multimedia boxes in Europe, effectively pronouncing both their sale and use as being illegal, it remains to be seen what concrete steps, if any, will be taken by local authorities here in Malta.
As to the question of private users streaming illegal content by other means, the issue remains largely unresolved by CJEU jurisprudence. However, in practice, ever since the early 2000s, rightholders have shifted their focus from small-scale direct infringers to alternative methods to combat the proliferation of piracy, relying on the concept of secondary infringement to nip piracy in the bud through centralized methods, such as going through ISPs.
The judgment represents another victory for rightholders worldwide, providing them with another tool to combat unauthorized access to their content. However, it remains to be seen whether this could extend beyond the specific facts of the case at hand or similar cases.
In reality, in the case of multimedia boxes which are not preloaded with such add-ons the indispensable intervention by the defendant, which was present in Filmspeler, would be lacking. Ultimately technological developments and different circumstances could result in different considerations being made by the deciding court; it therefore remains to be seen how such issues could be resolved.