Provisional text
OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 20 October 2022 (1)
Case C‑423/21
Grand Production d.o.o.
v
GO4YU GmbH,
DH,
GO4YU d.o.o.,
MTEL Austria GmbH
(Request for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria))
(Reference for a preliminary ruling – Intellectual property – Directive 2001/29/EC – Copyright in the information society – Article 3(1) – Communication to the public – Streaming platform – Access to protected content by means of a virtual private network (VPN) – Regulation (EU) No 1215/2012 – Article 7(2) – Jurisdiction in matters relating to tort, delict or quasi-delict)
Introduction
1.        From a technical point of view, the internet is a worldwide means of communication: a user can access any website from anywhere on Earth or transmit a message to a recipient who is located anywhere else. However, things look different from a legal perspective. Like any human activity, the internet is subject to legal regulation, and that regulation is inherently territorial, as its scope depends on the territorial competence of the relevant regulatory authority. In addition, various types of activity on the internet may be subject to the property or personal rights of individuals, which rights – or their exercise – may also be territorially restricted.
2.        Thus, there is a fundamental contradiction between the borderless and global nature of the internet on the one hand, and the territorially limited rights and obligations attached to various online activities on the other. There are two possible approaches to resolving this contradiction: we may attempt to ‘territorialise’ the internet through geoblocking or to extend the territorial competence of the relevant authorities so that it covers more countries, thereby allowing those authorities to regulate online activities globally.
3.        In the present case, the Court of Justice is being asked to resolve issues related to both the aforementioned approaches to resolving this contradiction.
Legal framework
4.        Article 4(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2) stipulates that:
‘Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State’.
5.        Pursuant to Article 6(1) of that regulation:
‘If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall … be determined by the law of that Member State’.
6.        Finally, Article 7(2) of Regulation No 1215/2012 stipulates that:
‘A person domiciled in a Member State may be sued in another Member State:
…
(2)      in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;
…’.
7.        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 (3) stipulates that:
‘Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them’.
Facts, procedure and the questions referred
8.        Grand Production d.o.o., a company established under Serbian law, is a producer of audiovisual entertainment programmes which are broadcast in the territory of Serbia by Serbian television broadcaster Prva Srpska Televizija.
9.        GO4YU d.o.o. Beograd, which is also a company established under Serbian law, operates an online streaming platform on which, under agreements with Prva Srpska Televizija, that television broadcaster’s programming is retransmitted. The platform is available both in the territory of Serbia and outside its borders.
10.      GO4YU GmbH (‘GO4YU Austria’) and MTEL Austria GmbH, which are companies established under Austrian law, provide services in Austria that consist in promoting the streaming platform owned by GO4YU Beograd as well as handling customer relations, including signing contracts and collecting payments. MTEL Austria is a subsidiary of GO4YU Beograd. DH is the chairman of the board and the sole shareholder of GO4YU Austria.
11.      GO4YU Beograd does not have the right to retransmit on the internet, outside the territory of Serbia and Montenegro, the entertainment programmes produced by Grand Production. As a result, it is obliged to block internet users located outside those two countries from accessing the programmes concerned. However, those users can bypass the blockade by using a so-called virtual private network (VPN) service. Such a service allows a user to connect to the internet through a special server (‘VPN server’) that camouflages the user’s IP address and thus his or her physical location. (4) Therefore, by using that service, users from outside Serbia and Montenegro can ‘pretend’ to be in those countries, thus bypassing the geoblocking used by GO4YU Beograd.
12.      According to Grand Production, GO4YU Beograd is aware of the fact that its geoblocking can be bypassed using a VPN service. Moreover, in the period from 30 April 2020 to 15 June 2020, the applicant’s shows could be accessed in Austria via the streaming platform owned by GO4YU Beograd without any geoblocking.
13.      At the request of Grand Production, on 28 September 2020 the Handelsgericht Wien (Commercial Court, Vienna, Austria) ordered an interlocutory injunction against GO4YU Beograd and MTEL Austria, prohibiting the communication to the public, in the territory of Austria, of entertainment programmes produced by the first company. On the other hand, the court dismissed the motion for a similar interlocutory injunction with respect to those two companies in so far as it went beyond Austria, and for the other two defendants (that is to say, DH and GO4YU Austria) it dismissed the motion in its entirety.
14.      That order was partially amended by the 28 January 2021 order of the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria), which dismissed Grand Production’s motion in its entirety in so far as it concerned MTEL Austria. Thus, only the interlocutory injunction against GO4YU Beograd remained in force, and it was limited to the territory of Austria.
15.      Grand Production appealed on a point of law to the referring court against the latter ruling, seeking an interlocutory injunction against all defendants consisting in the worldwide prohibition of communication to the public of programmes produced by the company.
16.      In those circumstances, the Oberster Gerichtshof (Supreme Court, Austria) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Is the concept of “communication to the public” in Article 3(1) of Directive [2001/29] to be interpreted as meaning that such communication is made by the direct operator (not established in the European Union in this case) of a streaming platform, whereby that operator:
–        alone decides on the content and blacking out of TV programmes broadcast by it and implements them from a technical point of view,
–        has sole administrator rights for the streaming platform,
–        can influence which TV programmes can be received by the end user via the service, but cannot influence the content of the programmes,
–        and is the sole point of control as regards which programmes and content can be watched in which territories and when,
where, in each case,
–        the user is provided with access not only to broadcasting content whose online use has been authorised by the respective rightholders, but also to protected content for which rights clearance has not been obtained, and
–        the direct operator of the streaming platform is aware that its service also enables the reception of protected broadcasting content without the consent of the rightholders by virtue of the fact that the end customers use VPN services which give the impression that the IP address and device of the end customers are located in areas for which the consent of the rightholder has been obtained, but
–        the reception of protected broadcasting content via the streaming platform without the consent of the rightholders was in fact possible for several weeks even without VPN tunnelling?
(2)      If Question
1 is answered in the affirmative:
Is the concept of “communication to the public” in Article 3(1) of Directive [2001/29] to be interpreted as meaning that such communication is also carried out by third parties (having, in this case, their registered offices in the EU) which are related, contractually and/or under company law, to the platform operator described in Question 1, and which, without themselves having any influence on the blackouts and on the programmes and content of the broadcasts brought to the streaming platform,
–        advertise the operator’s streaming platform and its services, and/or
–        offer trial subscriptions to customers that automatically end after 15 days, and/or
–        support the customers of the streaming platform as a customer service provider, and/or
–        offer on their website paid subscriptions to the streaming platform of the direct operator and then act as the contracting partner of the customers and as the recipient of payment, whereby the paid subscriptions are created in such a way that an express reference to the fact that certain programmes are not available is made only if a customer explicitly indicates at the time of conclusion of the contract that he or she wishes to see those programmes, but, if customers do not express that wish or specifically enquire about such programmes, they are not informed of that fact in advance?
(3)      Are Article 2(a) and (e) and Article 3(1) of Directive [2001/29], read in conjunction with Article 7(2) of Regulation [No 1215/2012], to be interpreted as meaning that, in the event of an allegation of infringement of copyright and related rights guaranteed by the Member State of the court seised, that court has jurisdiction only to rule on the damage caused in the territory of the Member State to which it belongs – because the territoriality principle precludes domestic courts from having competence to determine and examine the facts in relation to foreign acts of infringement – or can or must that court also rule on offences committed outside that territory (worldwide), as alleged by the infringed author?’
17.      The request for a preliminary ruling was received by the Court on 12 July 2021. In its response to the Court’s request for clarification, which was received by the Court on 11 July 2022, the referring court modified the first question referred by replacing the word ‘but’ with ‘or’ in the penultimate indent. Ultimately, therefore, the first preliminary question reads as follows:
‘Is the concept of “communication to the public” in Article 3(1) of Directive [2001/29] to be interpreted as meaning that such communication is made by the direct operator (not established in the European Union in this case) of a streaming platform, whereby that operator:
–        alone decides on the content and blacking out of TV programmes broadcast by it and implements them from a technical point of view,
–        has sole administrator rights for the streaming platform,
–        can influence which TV programmes can be received by the end user via the service, but cannot influence the content of the programmes,
–        and is the sole point of control as regards which programmes and content can be watched in which territories and when,
where, in each case,
–        the user is provided with access not only to broadcasting content whose online use has been authorised by the respective rightholders, but also to protected content for which rights clearance has not been obtained, and
–        the direct operator of the streaming platform is aware that its service also enables the reception of protected broadcasting content without the consent of the rightholders by virtue of the fact that the end customers use VPN services which give the impression that the IP address and device of the end customers are located in areas for which the consent of the rightholder has been obtained, or (5)
–        the reception of protected broadcasting content via the streaming platform without the consent of the rightholders was in fact possible for several weeks even without VPN tunnelling?’
18.      Written observations were submitted by the parties to the main proceedings and the European Commission. Those parties also provided written answers to the Court’s questions. The Court decided to give judgment without holding a hearing.
Analysis
19.      The referring court referred three questions to the Court in the present case. The first question concerns the scope of liability of a streaming platform (6) operator for communicating copyrighted content to the public on that platform without permission from the rightholders. The second question concerns the possible liability of entities cooperating with that operator. Finally, the third question concerns the scope of jurisdiction of the Member States’ courts with respect to copyright infringements. I will consider these questions in the order in which they were submitted.
First question referred
20.      By its first question, the referring court seeks, in essence, to determine whether Article 3(1) of Directive 2001/29 is to be interpreted as meaning that an operator of a streaming platform infringes the exclusive right to communicate works to the public established by that provision by retransmitting a television programme on the internet in a situation where:
(a)      users bypass geoblocking using a VPN service, so that protected works are available in the territory of the European Union, for which the operator of the aforementioned platform does not have permission from the copyright holder; or
(b)      the protected works were available without restrictions on the aforementioned platform in the territory of the European Union without permission from the copyright holder.
21.      This question raises two fundamental issues: first, whether the operator of a streaming platform on which a television programme is retransmitted is making a communication to the public within the meaning of Article 3(1) of Directive 2001/29 and, second, whether the operator of such a platform is liable on the grounds that its users access protected content by circumventing the operator’s access restrictions. Let me start with the first issue.
Retransmission of a television broadcast on the internet as communication to the public
22.      The Court has already had the opportunity to rule that ‘the concept of “communication to the public”, within the meaning of Article 3(1) of Directive [2001/29], must be interpreted as meaning that it covers a retransmission of the works included in a terrestrial television broadcast:
–        where the retransmission is made by an organisation other than the original broadcaster,
–        by means of an internet stream made available to the subscribers of that other organisation who may receive that retransmission by logging on to its server,
–        even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver’. (7)
23.      In this context, it should be noted that the reservation included in the last indent of the aforementioned paragraph
of the judgment of 7 March 2013, ITV Broadcasting and Others (C‑607/11, EU:C:2013:147), concerning the situation in which subscribers of an operator of an internet retransmission service are within the area of reception of the terrestrial television broadcast, does not mean that the ruling applies only to such situations. That reservation was necessary to counter an argument based on the lack of a so-called new public, namely a public other than the one targeted by the original television broadcast. The Court found that circumstance to be irrelevant, since the retransmission on the internet uses different technical means than the original television broadcast. (8) On the other hand, in a situation where the internet retransmission is also available outside the area of reception of the original television broadcast, (9) it is necessarily aimed at a wider public than that television broadcast. A fortiori, therefore, such retransmission constitutes communication to the public within the meaning of Article 3(1) of Directive 2001/29.
24.      Nor is it relevant whether the internet retransmission is simultaneous and unaltered compared to the original television broadcast (‘live streaming’), as in the case concluded by the judgment of 7 March 2013, ITV Broadcasting and Others (C‑607/11, EU:C:2013:147), or whether, for instance, it is delayed. Indeed, the criterion for considering such a retransmission to constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29 is the technical means by which it is carried out and the fact that it is carried out by an entity other than the original television broadcaster.
25.      Finally, it should be pointed out that while from a technical point of view the internet retransmission of the original television broadcast is secondary and dependent on that broadcast, from a legal point of view the act of communicating to the public, which that retransmission constitutes, is separate and independent from the original broadcast. Therefore, the fact that the original television broadcast is directed to an area outside the territory of the European Union, and therefore outside the territorial scope of Directive 2001/29, does not prevent the internet retransmission of that broadcast from being considered a communication to the public within the meaning of Article 3(1) of that directive, to the extent that the retransmission is available in the territory to which the directive applies.
26.      The above leads to the conclusion that in the situation described in point 20(b) of this opinion, that is to say, when protected works, which are communicated in the original television broadcast outside the territory of the European Union, are available without restriction within the territory of the European Union on the streaming platform on which that broadcast is retransmitted, the operator of that platform communicates those works to the public, which communication is covered by the exclusive right established by Article 3(1) of Directive 2001/29. Thus, such communication of works to the public, if carried out without the permission of the copyright holder, constitutes an infringement of that exclusive right.
Liability related to users circumventing restrictions on online access to copyrighted works
27.      I will now analyse a more complicated issue, namely one related to the liability of the operator of a streaming platform in the situation described in point 20(a) of this opinion. In that situation, the operator of the streaming platform, respecting the rights of the copyright holder, applies geoblocking to the territory where it is not permitted to communicate protected works to the public, in this case to the entire territory of the European Union, but users bypass that blockade by using a VPN service which allows them to access the works as if they were in the territory covered by the permission for communication to the public, namely in Serbia or Montenegro.
28.      Geoblocking is one of the instruments of digital rights management. (10) It involves various protections designed to prevent the use of digital (electronic) content in a manner contrary to the intention of the content provider. Those protections are intended to ‘correct’ digital data characteristics that are undesirable from the point of view of content providers, namely the ability to produce any number of perfect copies at virtually no cost and to transmit those copies (particularly online) over any distance. With regard to content disseminated on the internet, digital rights management instruments, for instance in the form of geoblocking, can also serve to counter the global nature of this medium, enabling its virtual division into geographic zones, as I mentioned in the introduction.
29.      Digital rights management instruments are commonly used to protect copyright by preventing illegal use (or simply use that the rightholders consider undesirable) of protected works distributed in digital format. They are also used as a tool to manage copyright on such works, making it possible to charge a separate fee for different forms of distribution of the same work, divide the market and apply so-called price discrimination to its different segments, or, finally, charge fees for the content made available on websites.
30.      Digital rights management instruments used for the protection and management of copyright are themselves protected by EU law. Article 6 of Directive 2001/29 obliges Member States to provide legal protection against the circumvention of ‘effective technological measures’, which, as defined in paragraph 3 of that article, include digital rights management instruments.
31.      The Court has also repeatedly indicated that digital rights management instruments can have legal effects under EU law, including, which is of particular interest in the present case, with regard to the definition of the concept of ‘communicating to the public’ within the meaning of Article 3(1) of Directive 2001/29.
32.      In its judgment of 13 February 2014, Svensson and Others (C‑466/12, EU:C:2014:76), the Court ruled that ‘the provision on a website of clickable links to works freely available on another website does not constitute an act of communication to the public, as referred to in that provision’. (11) The Court clarified that a publicly accessible website targets all internet users, and therefore a reference to a work located on the website does not give a new public access to it. (12)
33.      In contrast, a website with restricted access (13) targets only its customers, that is, those who are accessing it lawfully. Circumventing that restriction and making the protected works contained on the website available to others, even via a link from another website, means giving access to a new public and constitutes an act of communication to the public within the meaning of Article 3(1) of Directive. (14) Therefore, according to the Court, the use of digital rights management instruments on the internet may determine the circle of persons (the public) to whom the communication to the public within the meaning of Article 3(1) of Directive 2001/29 is directed. (15)
34.      In the case that ended with the judgment of 10 November 2016, Vereniging Openbare Bibliotheken (C‑174/15, EU:C:2016:856), the Court allowed the lending of electronic copies of books to be covered by the exception for public libraries provided for in Article 6(1) of Directive 2006/115/EC. (16) A condition for this was the use of digital rights management instruments that made lending of electronic copies similar to that of physical books. (17)
35.      Finally, in its judgment dated 9 March 2021, VG Bild-Kunst (C‑392/19, EU:C:2021:181), the Court ruled that ‘the embedding, by means of the technique of framing, in a third party website page, of works that are protected by copyright and that are freely accessible to the public with the authorisation of the copyright holder on another website, where that embedding circumvents measures adopted or imposed by that copyright holder to provide protection from framing, constitutes a communication to the public within the meaning of [Article 3(1) of Directive 2001/29]’. (18) The Court held that by adopting technical measures that safeguard a protected work made available on the internet against framing, the copyright holder limits the circle of persons to whom the work is communicated to the users of the website where it was originally made available. (19)
36.      In my opinion, similar reasoning can be applied to the geoblocking at issue in the present case. If the copyright holder (or its licensee) has applied that type of blocking, the protected content is directed only to the circle of persons accessing that content from the territory specified by the rightholder (that is to say, the territory where access is not blocked). Therefore, the rightholder does not communicate that content to the public in other territories.
37.      Thus, if entertainment programmes produced by Grand Production are subject to geoblocking on the streaming platform owned by GO4YU Beograd so that they can, in principle, be accessed only from the territory of Serbia and Montenegro, then GO4YU Beograd does not communicate those programmes to the public in the territory of the European Union.
38.      However, as is well known, there are no safeguards, either in the virtual world or in the real one, which cannot be circumvented or broken; the only issue is how difficult it is to circumvent or break them. This also applies to geoblocking. Various technical means, including VPN services, enable those blockades to be bypassed, in particular by virtually changing the user’s location. While there are technical means of counteracting such practices, they are not and probably never will be fully effective, as breach techniques are always one step ahead of security techniques.
39.      This does not mean, however, that an entity whose geoblocking of access to a protected work is circumvented by users communicates that work to the public in a territory where access to it is blocked. Such a conclusion would make it impossible to manage copyright on the internet on a territorial basis, since any communication of a work to the public on the internet would in principle have to be global.
40.      I believe that an approach analogous to that used by the Court in the hyperlink cases should be adopted here. Where clicking a hyperlink results in circumventing a restriction on access to copyrighted content, it is the person posting the hyperlink who is liable for communicating that content to a new public, and not the operator of the website where the original communication took place and whose access restrictions were breached.
41.      A peculiar aspect of the present case is the absence of any third party who would make the programmes produced by Grand Production available to users in violation of the geoblocking applied by GO4YU Beograd. It is the users themselves who bypass the blockade, accessing those programmes without any intermediaries. (20)
42.      However, I do not believe that this is a sufficient reason to hold GO4YU Beograd responsible for this state of affairs. Grand Production is probably correct in its claim that GO4YU Beograd is aware of the fact that its geoblocking is circumvented using VPN services. Grand Production is just as aware of this, however. Circumvention by users of various types of protections is a risk inherent in the distribution of copyrighted works in digital form, especially on the internet. When permitting GO4YU Beograd to communicate its programming to the public using a streaming platform in a certain territory, Grand Production had to take into account that a certain number of users might access that programming from outside the territory.
43.      However, that does not make GO4YU Beograd liable for communicating those programmes to the users concerned. Following the logic of the Court’s case-law discussed above, it is the will of the entity that communicates the content to the public, resulting from the technical protections used, that determines the intended circle of persons to whom that communication is directed.
44.      The situation would be different only if GO4YU Beograd intentionally applied ineffective geoblocking in order actually to allow access to persons from outside the territory in which it was authorised to communicate to the public the programmes produced by Grand Production, and if it made accessing them easier than by using the possibilities that objectively exist online, including, in particular, publicly available VPN services. In such a case, GO4YU Beograd would have to be considered to be intervening, in full knowledge of the consequences of its actions, in order to give access to a protected work to its customers, in a situation where, in the absence of that intervention, its customers would not, in principle, be able to enjoy that work. (21) Establishing this is the task before the referring court. On the other hand, parties to a licensing agreement may stipulate more far-reaching obligations for the licensee with respect to restricting access to the content that is the subject matter of that agreement.
Answer to the first question referred
45.      In view of the above, I propose to answer the first question referred for a preliminary ruling by stating that Article 3(1) of Directive 2001/29 must be interpreted as meaning that an operator of a streaming platform does not infringe the exclusive right to communicate works to the public established by that provision by retransmitting a television programme on the internet in a situation where users bypass geoblocking using a VPN service, so that protected works are available in the territory of the European Union, for which the operator of the aforementioned platform does not have permission from the copyright holder. On the other hand, the operator infringes that right when the protected works are available without restriction on the aforementioned platform in the territory of the European Union without the permission of the copyright holder.
Second question referred
46.      By its second question, the referring court seeks, in essence, to determine whether Article 3(1) of Directive 2001/29 is to be interpreted as meaning that an entity related to the operator of a streaming platform on which copyrighted works are made available – which entity advertises that platform, contracts with customers for their operator’s services, and provides support to those customers, but has no influence either on the content made available on the platform or on the access restrictions applied in order to protect the third parties’ copyright – also makes a communication to the public within the meaning of that provision.
47.      I believe that the answer to that question can be derived from the Court’s previous case-law on communicating copyrighted works to the public within the meaning of Article 3(1) of Directive 2001/29.
48.      In my view, in Stim and SAMI (C‑753/18, EU:C:2020:4), I have already had occasion to point out that, although in its case-law the Court found that communication to the public took place in numerous instances that went beyond the simple direct transmission of a work, the element that all those situations had in common was the direct link between the user’s intervention and the copyrighted works thus communicated. That direct link is the central element without which it is impossible to speak of communication of works to the public. (22) Agreeing with my proposed answer to the preliminary question referred in that case, the Court ruled that the hiring out of vehicles equipped with radios does not constitute a communication to the public within the meaning of, in particular, Article 3(1) of Directive 2001/29. (23)
49.      The above conclusions are not altered by the Court’s subsequent case-law regarding the communication of copyrighted works to the public within the meaning of Article 3(1) of Directive 2001/29. In particular, in its judgment of 22 June 2021, YouTube and Cyando (C‑682/18 and C‑683/18, EU:C:2021:503), the Court found that the operator of a video-sharing platform or a file-hosting and ‑sharing platform only makes a communication to the public of protected works (thus infringing copyright) if it has specific knowledge that protected content is available illegally on its platform and refrains from expeditiously deleting it or blocking access to it, or where that operator, despite the fact that it knows or ought to know, in a general sense, that users of its platform are making protected content available to the public illegally via its platform, refrains from putting in place the appropriate technological measures that can be expected from a reasonably diligent operator in its situation in order to counter credibly and effectively copyright infringements on that platform, or where that operator participates in selecting protected content illegally communicated to the public, provides tools on its platform specifically intended for the illegal sharing of such content or knowingly promotes such sharing. (24) On the other hand, the mere provision of an online platform that enables the distribution of copyrighted works is not sufficient to establish that the operator of such a platform communicates those works to the public within the meaning of Article 3(1) of Directive 2001/29, even if users would not be able to distribute those works without such a platform. (25)
50.      In the present case, there is no such direct link between the activities of the entities to which the second question refers and the works communicated to the public on the streaming platform operated by GO4YU Beograd, including the entertainment programmes produced by Grand Production. Those entities undoubtedly contribute to the operation of that platform by acting as intermediaries between the platform and its customers. It can even be considered that their activity is necessary for those customers to access the content distributed via the platform, since a subscription agreement is required for that purpose. On the other hand, those entities have no influence over the content distributed on the platform, and are not able to prevent possible copyright infringements in any way.
51.      The fact mentioned by the referring court in the second question – that customers are not informed in advance about the unavailability of certain content on the platform, including the entertainment programmes produced by Grand Production – does not change this conclusion whatsoever. Failure to inform customers that certain content is unavailable on the platform does not change that unavailability. In my opinion, there is also no obvious causal connection between the failure to inform customers of the unavailability of that content and the customers’ tendency to bypass the geoblocking which causes that unavailability. Additionally, as I indicated above, I believe that the operator of the streaming platform, much less other entities related to it, is not liable for the fact that users circumvent technical restrictions on access to copyrighted works.
52.      Entities related to the operator of such a platform might incur accessory liability for facilitating or collaborating in copyright infringement, if such infringement is found. However, that liability is not harmonised in EU law and is regulated solely by the national laws of the Member States.
53.      In view of the above, I propose to answer the second question referred for a preliminary ruling by stating that Article 3(1) of Directive 2001/29 must be interpreted as meaning that an entity related to the operator of a streaming platform on which copyrighted works are made available, which entity advertises the platform, contracts with customers for their operator’s services and provides support to those customers, but has no influence either on the content made available on the platform or on the access restrictions applied in order to protect the third parties’ copyright, does not make a communication to the public within the meaning of that provision.
Third question referred
54.      The third preliminary question concerns the scope of jurisdiction of the Member States’ courts in tort, delict or quasi-delict cases concerning copyright infringement. As formulated by the referring court, this question concerns the interpretation of Article 2(a) and (e) and Article 3(1) of Directive 2001/29, read in conjunction with Article 7(2) of Regulation No 1215/2012.
55.      The referring court clarifies that the question is the result of its doubts in the context of the Court’s case-law. On the one hand, the Court ruled that in the event of an allegation of infringement of copyright guaranteed by the Member State of the court seised, that court has jurisdiction, on the basis of the place where the damage occurred (in German, ‘Erfolgsort’), to hear an action for damages in respect of an infringement of those rights resulting from the placing of protected works online on a website accessible in its territorial jurisdiction, but only to the extent that the damage was caused in the territory of that Member State. (26)
56.      On the other hand, the Court also found that a person who alleges that his personality rights have been infringed by the publication of incorrect information concerning him on the internet and by a failure to remove comments relating to him can bring an action for rectification of that information, removal of those comments and compensation in respect of all the harm caused before the courts of the Member State in which his centre of interests is located. However, such a person cannot bring an action for rectification of that information and removal of those comments before the courts of each Member State in which the information published on the internet is or was accessible. (27)
57.      In the present case, the referring court seeks to determine whether, in view of the subject matter of the main proceedings, which is not a claim for damages, but rather a request for an interlocutory injunction in the form of a prohibition on communicating the works owned by the applicant to the public on the internet, the scope of jurisdiction of the court before which the action is brought should be determined in accordance with the former judgment, that is to say, its jurisdiction should be limited to the territory of Austria, or in accordance with the latter judgment, with the result that Austrian courts would be competent to order an interlocutory injunction with a worldwide scope.
58.      However, I have doubts about the admissibility of this question, as in my opinion the Court is not in a position to provide the referring court with an answer that would be useful for resolving the dispute pending before it. Moreover, those doubts appear to be shared by the parties to the main proceedings.
59.      Firstly, the Court’s case-law cited above was developed on the basis of Article 7(2) of Regulation No 1215/2012, (28) which provision the referring court also indicates in the body of the question. That provision establishes, in tort, delict and quasi-delict cases, the jurisdiction of the court of the place where the event causing the damage occurred. It was in this context that the Court defined the scope of jurisdiction of Member State courts in the case-law in question. However, the provision is not applicable to the main proceedings in the present case.
60.      As regards GO4YU Beograd, that company is based in Serbia, that is to say, outside the European Union, while the application of Article 7 of Regulation No 1215/2012 is limited to defendants domiciled (or established) in Member States. In contrast, the jurisdiction of the courts of each individual Member State over actions against entities not domiciled in a Member State is determined, in accordance with Article 6(1) of that regulation, by the law of that Member State.
61.      As for the other defendants in the main proceedings, they are established or domiciled in Austria, that is to say, the Member State of the referring court. The jurisdiction of Austrian courts in cases against those defendants is determined not by Article 7(2), as that provision applies to persons sued in the courts of a Member State other than the state in which they are domiciled, but rather by Article 4(1) of Regulation No 1215/2012, under which any person domiciled in a Member State may be sued in a court of that State. The jurisdiction of the courts of that Member State is general and not limited in principle – in any case not by the rules on jurisdiction. (29) Therefore, the Court’s case-law cited in points 55 and 56 of this opinion cannot apply here.
62.      Likewise, that case-law cannot be applied if Austrian courts have jurisdiction to hear the action against GO4YU Beograd, in application of Austrian law pursuant to Article 6(1) of Regulation No 1215/2012, due to the fact that this action is connected to the action against the other defendants. (30) Indeed, the scope of jurisdiction in this regard should be analogous to that under Article 4(1) of that regulation. This is in any case a matter of interpretation of national law. (31)
63.      Secondly, the referring court does not clarify how applying the Court’s reasoning in its judgment of 17 October 2017, Bolagsupplysningen and Ilsjan (C‑194/16, EU:C:2017:766) could lead to the unlimited jurisdiction of Austrian courts.
64.      On the one hand, there is no indication that the centre of Grand Production’s interests is in Austria rather than in Serbia where the company is headquartered. Moreover, the parties to the main proceedings state in their response to the Court’s question that the doctrine of centre of interest does not apply in the present case.
65.      On the other hand, if we wish to apply, by analogy, the Court’s statement that, in the light of the ubiquitous nature of the information and content placed online on a website and of the fact that the scope of their distribution is, in principle, universal, an application for the rectification of the information
and the removal of the content
is a single and indivisible application and can, consequently, only be made before a court with jurisdiction to rule on the entirety of an application for compensation for damage, (32) the third question referred in the present case is irrelevant. Indeed, according to that statement, any request to rectify or remove content posted on the internet (33) must be brought before a court with unlimited territorial jurisdiction, which court must first be designated on the basis of the relevant legislation; in the present case, this would be the Austrian laws governing competence, read in conjunction with Article 6(1) of Regulation No 1215/2012. Therefore, there is no longer any need to consider the scope of the court’s jurisdiction.
66.      In view of the above, I propose to declare the third question inadmissible.
Conclusions
67.      In the light of all the above considerations, I propose that the following answers should be given to the questions referred for a preliminary ruling by the Oberster Gerichtshof (Supreme Court, Austria):
(1)      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 meaning that
an operator of a streaming platform does not infringe the exclusive right to communicate works to the public established by that provision by retransmitting a television programme on the internet in a situation where users bypass geoblocking using a VPN service, so that protected works are available in the territory of the European Union, for which the operator of that platform does not have permission from the copyright holder; on the other hand, the operator does infringe that right where the protected works are available on its platform without any restriction in the territory of the European Union without permission from the copyright holder.
(2)      Article 3(1) of Directive 2001/29 must also be interpreted as meaning that
an entity related to the operator of a streaming platform on which copyrighted works are made available, which entity advertises the platform, contracts with customers for its services and provides support to those customers, but has no influence either on the content made available on the platform or on the access restrictions applied in order to protect the third parties’ copyright, does not make a communication to the public within the meaning of that provision.
1      Original language: Polish.
2      OJ 2012 L 351, p. 1.
3      OJ 2001 L 167, p. 10.
4      On the internet, the user is seen as having the IP address and location of the VPN server.
5      Emphasis added. ‘Oder’ in the original.
6      At this point, it should be made clear, as the Commission also rightly points out, that this case does not concern a platform for users to publish content, but rather a website whose operator has full control over the content made available there.
7      Judgment of 7 March 2013, ITV Broadcasting and Others (C‑607/11, EU:C:2013:147, paragraph 1 of the operative part).
8      Judgment of 7 March 2013, ITV Broadcasting and Others (C‑607/11, EU:C:2013:147, paragraph 39).
9      As in the present case, where a television broadcast aimed at the territory of Serbia is available, via the internet, also outside that territory, including, in particular, in the European Union.
10      For more on geoblocking and the legal consequences of circumventing it, see: Kra-Oz, T., ‘Geoblocking and the Legality of Circumvention’, IDEA – The Journal of the Franklin Pierce Center for Intellectual Property, vol. 57, 2017, p. 385–430; Trimble, M., ‘Copyright and Geoblocking: The Consequences of Eliminating Geoblocking’, Boston University Journal of Science & Technology Law, vol. 25, 2019, p. 476–502.
11      Paragraph 1 of the operative part. Emphasis added.
12      Judgment of 13 February 2014, Svensson and Others (C‑466/12, EU:C:2014:76, paragraphs 27 and 28).
13      That is to say, using a kind of digital rights management instrument.
14      Judgment of 13 February 2014, Svensson and Others (C‑466/12, EU:C:2014:76, paragraphs 27 and 31).
15      See, to that effect, the judgment of 16 November 2016, Soulier and Doke (C‑301/15, EU:C:2016:878, paragraph 36).
16      Directive of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 2006 L 376, p. 28).
17      Judgment of 10 November 2016, Vereniging Openbare Bibliotheken (C‑174/15, EU:C:2016:856, paragraphs 51 to 53 and paragraph 1 of the operative part).
18      Operative part. Emphasis added.
19      Judgment of 9 March 2021, VG Bild-Kunst (C‑392/19, EU:C:2021:181, paragraphs 42 to 43).
20      Of course, there are intermediaries in the form of VPN service providers. However, they are intermediaries with respect to internet access, and not specifically with respect to making copyrighted works available. They appear to be intermediaries in the sense of Article 12 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).
21      See, to that effect, the judgment of 26 April 2017, Stichting Brein (C‑527/15, EU:C:2017:300, paragraph 31).
22      See my opinion in Stim and SAMI (C‑753/18, EU:C:2020:4, points 24–35).
23      Judgment of 2 April 2020, Stim and SAMI (C‑753/18, EU:C:2020:268, operative part).
24      Judgment of 22 June 2021, YouTube and Cyando (C‑682/18 and C‑683/18, EU:C:2021:503, paragraph 1 of the operative part).
25      Judgment of 22 June 2021, YouTube and Cyando (C‑682/18 and C‑683/18, EU:C:2021:503, paragraphs 77 to 79).
26      Judgment of 22 January 2015, Hejduk (C‑441/13, EU:C:2015:28, operative part).
27      Judgment of 17 October 2017, Bolagsupplysningen and Ilsjan (C‑194/16, EU:C:2017:766, operative part).
28      Or on the basis of the analogous Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), which was repealed and replaced by Regulation No 1215/2012.
29      See, similarly, my opinion in Glawischnig-Piesczek (C‑18/18, EU:C:2019:458, points 85–86, and footnote 42 and the literature cited therein).
30      The referring court does not clarify in its request on what basis the Austrian courts considered themselves competent to hear the action against GO4YU Beograd. However, Austrian law appears to provide for joining a person established in a third country to the proceedings (see: Petz, T., in: Toshiyuki, K., Intellectual Property and Private International Law: Comparative Perspectives, Bloomsbury Publishing (UK), 2012, pp. 310
et seq.).
31      Article 8(1) of Regulation No 1215/2012 does not apply in the present case, since, like Article 7 of that regulation, it only applies to defendants domiciled (established) in the territory of a Member State (see, mutatis mutandis, the judgment of 11 April 2013, Sapir and Others, C‑645/11, EU:C:2013:228, paragraph 3 of the operative part).
32      Judgment of 17 October 2017, Bolagsupplysningen and Ilsjan (C‑194/16, EU:C:2017:766, paragraph 48).
33      Therefore, by analogy, also any request to prohibit making copyrighted works available on the internet.