Case C‑610/15

Stichting Brein

v

Ziggo BV

and

XS4ALL Internet BV

(Request for a preliminary ruling from the Hoge Raad der Nederlanden)

(Reference for a preliminary ruling — Intellectual and industrial property — Directive 2001/29/EC — Harmonisation of certain aspects of copyright and related rights — Article 3(1) — Communication to the public — Definition — Online sharing platform — Sharing of protected files, without the consent of the rightholder)

Summary — Judgment of the Court (Second Chamber), 14 June 2017

Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Communication to the public — Definition — Making available and managing, on the internet, a platform for the sharing of protected files, within the context of a peer-to-peer network, without the consent of the rightholder — Included

(European Parliament and Council Directive 2001/29, Art. 3(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, in circumstances such as those at issue in the main proceedings, the making available and management, on the internet, of a sharing platform which, by means of indexation of metadata relating to protected works and the provision of a search engine, allows users of that platform to locate those works and to share them in the context of a peer-to-peer network.

As regards, in the first place, the question of whether making available and managing an online sharing platform, such as that at issue in the main proceedings, is an ‘act of communication’ for the purposes of Article 3(1) of Directive 2001/29, it must be noted, as recital 23 of Directive 2001/29 states, that the author’s right of communication to the public, provided for in Article 3(1), covers any transmission or retransmission of a work to the public by wire or wireless means, including broadcasting.

Furthermore, as is apparent from Article 3(1) of Directive 2001/29, in order for there to be an ‘act of communication’, it is sufficient, in particular, that a work is made available to a public in such a way that the persons comprising that public may access it, from wherever and whenever they individually choose, irrespective of whether they avail themselves of that opportunity (see, to that effect, judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 36 and the case-law cited).

The Court has already held, in this regard, that the provision, on a website, of clickable links to protected works published without any access restrictions on another site, affords users of the first site direct access to those works (judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraph 18; see also, to that effect, order of 21 October 2014, BestWater International, C‑348/13, not published, EU:C:2014:2315, paragraph 15, and judgment of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 43).

The Court has also held the same to be the case for the sale of a multimedia player 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 without the consent of the rightholders (see, to that effect, judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraphs 38 and 53).

It can therefore be inferred from this case-law that, as a rule, any act by which a user, with full knowledge of the relevant facts, provides its clients with access to protected works is liable to constitute an ‘act of communication’ for the purposes of Article 3(1) of Directive 2001/29.

In the second place, in order to be categorised as a ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, the protected works must also in fact be communicated to a ‘public’ (judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 43 and the case-law cited).

In that regard, the Court has stated, first, that the concept of ‘public’ involves a certain de minimis threshold, which excludes from that concept groups of persons concerned which are too small, or insignificant. Second, in order to determine that number, the cumulative effect of making the works available to potential recipients should be taken into account. Thus, it is necessary to know not only how many persons have access to the same work at the same time, but also how many of them have access to it in succession (see, to that effect, judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 44 and the case-law cited).

(see paras 30-34, 40, 41, 48, operative part)