Opinion of the Advocate General — ECLI:EU:C:2016:938
Date: 2016-12-08
Language of the case: Dutch
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary of newspaper articles, even though it was not authorised by the holders of the copyright over these articles, was not restricted by the applicable legislation with the result that the use at issue could not be considered to be unlawful. 69 By contrast, in circumstances such as those at issue in the main proceedings, and having regard, in particular, to the content of the advertising of the multimedia player at issue mentioned in paragraph 18 above and the fact, noted in paragraph 51 above, that the main attraction of that player for potential purchasers is the pre-installation of the add-ons concerned, it must be held that it is, as a rule, deliberately and in full knowledge of the circumstances that the purchaser of such a player accesses a free and unauthorised offer of protected works. 70 It must also be held that, as a rule, temporary acts of reproduction, on a multimedia player such as that at issue in the main proceedings, of copyright-protected works obtained from streaming websites belonging to third parties offering those works without the consent of the copyright holders are such as to adversely affect the normal exploitation of those works and causes unreasonable prejudice to the legitimate interests of the right holder, because, as the Advocate General observed in points 78 and 79 of his opinion, that practice would usually result in a diminution of lawful transactions relating to the protected works, which would cause unreasonable prejudice to copyright holders (see, to that effect, judgment of 10 April 2014, ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph 39). 71 It follows that those acts do not satisfy the conditions set out in Article 5(1) and (5) of Directive 2001/29. 72 In the light of all the foregoing considerations, the answer to the third and fourth questions referred is that Article 5(1) and (5) of Directive 2001/29 must be interpreted as meaning 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. Costs 73 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Second Chamber) hereby rules: 1. The concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as covering the sale of a multimedia player, such as that at issue in the main proceedings, on which there are pre-installed add-ons, available on the internet, containing hyperlinks to websites — that are freely accessible to the public — on which copyright-protected works have been made available to the public without the consent of the right holders. 2. Article 5(1) and (5) of Directive 2001/29 must be interpreted as meaning that acts of temporary reproduction, on a 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. [Signatures] * Language of the case: Dutch.