CJEU revisits concept of communication to the public and temporary copies exemption
Karin Cederlund, Nedim Malovic · Journal of Intellectual Property Law & Practice · 2017
Stichting Brein v Jack Frederik Wullems (Filmspeler), C-527/15, EU:C:2017:300, 26 April 2017 Further to a reference for a preliminary ruling from the District Court of Central Netherlands made in the context of copyright infringement proceedings, the Court of Justice of the European Union (CJEU) held that the sale of a multimedia player with pre-loaded hyperlinks to pirate websites constitutes a communication to the public, within the meaning of Article 3(1) of Directive 2001/29/EC (InfoSoc Directive). The CJEU also held that acts of temporary reproduction on such a multimedia player of a copyright-protected work, obtained by streaming without the consent of the copyright owner, do not fulfil the conditions of the temporary copies exemption within Article 5(1) of the InfoSoc Directive. Mr Wullems installed software add-ons onto set-top boxes (multimedia players), which could be connected to a user’s internet connection and TV set. The add-ons contained hyperlinks to pirate websites which, in a user-friendly fashion, made available various films, TV series and live sports events. The websites were freely available and the making available of the works at issue had not been authorized by the relevant rightholders. Wullems proceeded to brand the multimedia player as ‘FilmSpeler’ and advertised it as a device that made it possible to freely and easily watch on a TV screen unlicensed audiovisual material available online.