Copyright piracy : assessment of national legislative approaches and court practice regarding online copyright piracy.
Date: 2024-03-05
Institutions: European Union Agency for Criminal Justice Cooperation
Subjects: EU Member State, EU law, Internet, TRIPS, application of the law, broadcasting, copyright, criminal law, digital distribution, national law, report

Copyright Piracy  

Assessment of national legislative 
approaches and court practice 
regarding online copyright piracy 

September 2023 

COPYRIGHT PIRACY CRIME 

Assessment of national legislative 
approaches and court practice 

September 2023 

1 

December, 2023 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
This report was prepared by the Intellectual Property Crime (IPC) Project 
at  Eurojust. The  project is  funded by  the  European Union  Intellectual 
Property Office  and  implemented by the  European Union  Agency for 
Criminal Justice Cooperation (Eurojust) under the terms of the service-
level  agreement signed  between the  two  EU  agencies  in  March  2021. The  project  aims  at 
enhancing cooperation and delivering an efficient and coherent response to IP crimes at the EU 
level. To do so, it focuses on building, promoting and exchanging knowledge, tools and expertise, 
along with raising awareness and providing enhanced legal support to complex cross-border IPC 
investigations. 

To  learn more about the IPC project, please visit https://www.eurojust.europa.eu/intellectual-
property-crime-project or scan the QR code provided. 

The IPC project team can be contacted via IPCrime@eurojust.europa.eu. 

! 

 DISCLAIMER 

! 

The information provided in this document is based on publicly available sources, including national 
legislation in  force  at  the  time  of  writing and  national  judgements  accessible via national  judicial 
databases.  

 DISCLAIMER 

Compliance with data protection requirements in publicly available judgements is the responsibility of 
the national authorities that upload the judgements onto the national judicial databases. Eurojust cannot 
be liable for any subsequent changes made by the national authorities to the published judgements, or 
for any potential personal data breach arising from the information provided therein.   

In the event of  any errors or  inconsistencies found in this document, please notify the IPC project at 
IPCrime@eurojust.europa.eu. 

The information provided in this document is based on publicly available research, including national 
legislation in force at the time of writing and national judgements available in national judicial databases.  

2 

Compliance with data protection requirements in publicly available judgements is the responsibility of 
the national authorities that upload the judgements onto their national judicial database. Euroj ust cannot 
be liable for any subsequent changes made by the national authorities to the published judgements, or 
for any potential personal data breach arising from the information provided therein.   

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
CONTENTS 

Key findings ................................................................................................................................................................ 4 

Introduction ................................................................................................................................................................ 5 

Chapter 1 – Copyright, neighbouring rights and their protection............................................................. 7 

Chapter 2 – Legal framework for copyright protection and enforcement.............................................. 9 

International benchmarks ............................................................................................................................ 9 

EU standards for the harmonisation of copyright protection and enforcement ...................... 10 

Chapter 3 – Building blocks of copyright piracy .......................................................................................... 12 

Element 1: Copyright infringement ........................................................................................................ 12 

What is a copyright infringement under EU and national laws?............................................... 13 

Right of reproduction.............................................................................................................................. 14 

Right of communication to the public................................................................................................ 15 

Case-law on the right of communication to the public and the making available right  – 
guidance from the CJEU ..................................................................................................................... 16 

What acts constitute an infringement of the right of communication to the public and 
the making available right? .............................................................................................................. 18 

A. Hyperlinks ......................................................................................................................................... 18 

B. Illegal streaming and internet protocol television ............................................................... 24 

C. Unauthorised file-sharing and torrent websites ................................................................... 27 

Element 2: Wilfulness.................................................................................................................................. 29 

Element 3: Commercial scale .................................................................................................................... 31 

TRIPS-plus elements in national legislations....................................................................................... 38 

Conclusion ................................................................................................................................................................ 40 

Annexes ..................................................................................................................................................................... 43 

Schematic on communication to the public (based on the CJEU’s 2-step test)......................... 43 

Schematic on communication to the public in instances of hyperlinking (CJEU’s Svensson 
and GS Media rulings) ................................................................................................................................. 43 

3 

 
 
 
 
 
 
 
 
 
Key findings 

  National legislations governing criminal infringements of copyrights vary considerably across the EU. 

  Despite  the  existence of  minimum international  standards for  the  criminalisation of  copyright 
infringements, some Member States have expanded, and others have restricted, the scope of criminal 
liability by raising or lowering the thresholds for the crime of copyright piracy in national legislation. 

  Notwithstanding similarities in legal traditions, countries within the same geographical region often 

exhibit differences in national legislative approaches to criminal copyright infringement . 

  The jurisprudence of the Court of Justice of the European Union has been instrumental for a better 
understanding of  infringements of copyrights in  the online environment , and it  has to  an  extent 
helped to harmonise case-law on the treatment of certain online infringing acts. 

  The concept of  online copyright infringements is not static and is gradually evolving in  line with 

national and European jurisprudence, especially in the context of cybercrime. 

  The elements necessary for the criminalisation of a copyright infringement in national law may vary 

depending on the type of infringing act. 

  Commercial aim and/or scale is a central element in setting the limits of  criminal enforcement at 
national  level,  as  well  as  in  determining the minimum and  maximum thresholds for   custodial 
sentences. Nevertheless, the actual duration of the sentence is a matter for national judges . 

  The preconditions for commercial scale vary across national legislations; in some jurisdictions, its 
existence is  determined  on the basis of  criteria set  in national legislation, whereas in others the 
existence of this element depends on the interpretation made by national courts. 

  While providing for  the same type of  criminal sanctions and penalties, national legislations differ 
considerably in  relation to  the  fines  and  the  maximum prison sentences  foreseen  for  criminal 
copyright infringements. 

 

 

In  most  EU  countries,  the  basic  offence  of  copyright  piracy  (in  the  absence  of  aggravating 
circumstances) leads to a maximum custodial sentence of 1 year, which mostly results in a financial 
penalty in lieu of prison time. 

In  cases where aggravated circumstances are present, the maximum custodial sentences do  not 
exceed 5 years, with a few exceptions. These are, however, often suspended in their execution.  

  Besides  fines  and  imprisonment,  some  jurisdictions  include  additional  measures  to  sanction 

infringers, including civil procedures. 

  Low sentences can prove an obstacle to the success of investigations and prosecutions of IP crime, by 
limiting the use of all the available (and the more effective) intelligence and investigative tools and 
causing a  general deprioritising of this  crime type. These  factors contribute in  some measure to 
making IP crime a high-value low-risk activity for organised crime groups. 

  The  current system of  criminal legislation and  sentencing practice is  unable to  effectively deter 

criminals from committing copyright piracy, as the benefits derived outweigh the risks. 

  Advances in technology will continue to impact the type and nature of copyright infringements on the 

4 

internet, possibly leading to the future criminalisation of new acts. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Introduction 

Intellectual property (IP) has long been the engine powering nations’ progress with new ideas, 
innovations  and  products.  Copyrights,  in  particular,  have  not  only  been  instrumental  in 
contributing to  the economic development of  countries across  the world, but they have also 
helped to create and promote new forms of culture and entertainment. 

The internet and new technological developments have opened up new opportunities for creators 
to promote their work and increase revenue streams, but they have proven to be a double-edge 
sword, bringing along new  challenges that caused the rise of  unauthorised use of  copyright-
protected works. In the last few decades, the online environment has become the new frontier for 
copyright infringements, enabling malicious actors to exploit protected works in new ways and 
at scale, while simultaneously providing them with an extra layer of anonymity and protection. 

At the same time, the protection of  IP  rights has remained largely unchanged since the main 
international norms  in  this  area  were  created  at  the  turn  of  the  20 th  century.  The  Paris 
Convention  and  the  Berne  Convention,  adopted  in  1883  and  1886  respectively, were  last 
amended in 1979, and the WIPO Copyright Treaty – created to strengthen the protection of works 
and their authors in the digital environment – remains unaltered since 1996, when it was first 
adopted. Likewise,  the  Agreement on  Trade-Related Aspects of  Intellectual Property Rights 
(TRIPS) came into effect in 1995, during the age of dial-up internet when the average size of a file 
was recorded on  a floppy  disk with a  capacity of  1.4 megabytes. Today, the slowest internet 
connection can download 10 times this data in a  second but the provisions of  TRIPS remain 
unchanged. 

Against this background, IP criminals are now using 21st century technology to carry out new 
forms of copyright infringements at scale, while the legislation in place to protect IP owners lags 
behind, unable to keep up to speed with the changes in the environment within which creators 
and criminals operate. 

Online piracy involves large profit margins for criminals, and consequently a loss of revenue for 
rights  holders,  which  translates  into  fewer  jobs,  less  innovation  and  weaker  economies. 
Notwithstanding, online piracy is too  often perceived as  a  victimless crime –  a reality that is 
reflected in  few  prosecutions and  low  sentences handed to  those  who  infringe the  rights of 
creators and innovators. These factors have helped to make online piracy a low-risk, high-profit 
enterprise, in turn becoming more attractive for individual infringers and organised criminals 
alike. 

Violations of copyrights are largely dealt with by civil courts, which provide a quick and effective 
response to most cases where stopping the infringement is the primary goal of the injured party. 
However, the large-scale nature of infringements and the increasing involvement of organised 
crime groups calls for a stronger and more dissuasive response to enforce copyrights. 

Over the past years, criminal law has proved to be an important tool for rightholders to enforce 
their rights and prevent future violations. As a matter of national competence, criminal law and 
its responses to copyright infringements are not harmonised at the EU level – except for some 
minimum international standards (1). As a result, national approaches to online piracy tend to 

(1) 

Today, TRIPS  is the only internationally recognised  treaty  that contains  provisions  for the  implementation of  criminal law 
measures to tackle piracy in the form of minimum international standards. These will be addressed in more detail in subsequent 
sections of this report.  

5 

 
 
                                                             
  
vary between EU Member States (MS), making a comparative analysis of national enforcement 
responses not only necessary, but also very interesting. 

The present report intends to contribute to that effort. Developed with IP practitioners in national 
judicial  authorities  in  mind,  it  aims  to  provide  a  better  understanding  of  how  criminal 
infringements of copyrights are legislated and enforced across MS. 

It  focuses  on  online criminal infringements of  copyrights –  specifically, infringements of  the 
exclusive right of communication to the public and its ‘making available’. The reason to focus on 
online piracy alone is twofold. Firstly, online piracy makes up the majority of copyright-related 
cases  that are  brought before  courts today. Secondly,  this area  has exposed members of  the 
judiciary to novel legal problems that often require them to possess knowledge in or  gain an 
understanding of  emerging issues in  complex fields involving the internet, technology and e-
commerce. In the context of online copyright infringements, the communication to the public and 
the making available right take centre stage, since most infringing acts carried out on the internet 
violate this specific right. 

The  report begins  by  looking  at  the  minimum core international standards for  the criminal 
enforcement of copyright infringements set by TRIPS, which came into effect in 1995, and other  
relevant EU  instruments that have  harmonised certain aspects  of  copyright protection  and 
enforcement at the EU level. 

The report then separately addresses each of the elements of the crime of copyright piracy set in 
TRIPS and examines how they are construed in national legislation and court practice. For this 
purpose, it refers to a select cohort of MS in different regions to capture important differences at 
the national level and ensure a balanced geographical representation and legislative coverage. 
The aim of  the report is neither to provide an exhaustive overview of all the elements in each 
individual MS, nor to make an in-depth analysis of the national laws and court rulings. These are 
beyond the scope of this report. 

Online copyright infringements are a more recent phenomenon, which means that national courts 
have  had  to  contend  with  new  legal questions in  previously  unexplored areas. Against this 
background, the Court of Justice of the European Union (CJEU) has played a central role in helping 
national courts make sense of  new aspects of  copyright-infringing conducts and  setting new 
standards for  the  interpretation of  EU  laws  on  copyrights.  For  this  reason,  the  section  on 
infringement (Chapter 3) first begins with a review of the CJEU case-law and then continues with 
an assessment of the practice of national courts regarding common copyright infringing acts.  

While the main focus of this report are criminal cases of online piracy, references are made to 
civil law cases, including the rulings of the CJEU, as these are sometimes the only available judicial 
basis for  criminal prosecutions. Furthermore, as  demonstrated in existing national case-law, 
criminal law often relies on civil law concepts and provisions regulating copyrights.  

6 

 
 
 
 
Chapter 1 – Copyright, neighbouring rights and their 
protection 

A copyright, also known as author’s right, is a legal term used to describe the rights of creators 
over their literary and artistic creations (2). 

In line with the Berne Convention (3), adopted in 1886 and amended in 1979, every literary, 
scientific and artistic production, regardless of  the way in which it is expressed,  is worthy of 
copyright protection. Examples of  copyright-protected works include books,  pamphlets, other 
types of  writings, musical, cinematographic and photographic works,  dramatic or  dramatico-
musical works, musical compositions, illustrations, maps and works of  drawing, paintings and 
sculptures, to name a few (4). 

Generative AI and its impact on IP crime 

To learn more about how generative AI 
can  be  harnessed  by  criminals  to 
perpetrate  IP  and  other  crimes, please 
refer to the recently-published Eurojust 
paper  on  the  topic by  scanning the  QR 
code below. 

Importantly,  copyright  protects  only  the  creative 
expression and not the underlying ideas or the physical 
object onto which the work is incorporated (5). 

In  order to  be protected, a  work  has  to  be original, 
meaning that it needs to reflect the author’s intellectual 
creation.  As  a  human-centred  discipline,  modern 
copyright law attributes rights to human creators, who 
become the owners and beneficiaries of the copyright 
granted  to  their  work.  In  the  age  of  AI-generated 
content, questions are starting to emerge as to whether 
works generated by AI models can become the subject 
of  copyright protection. However, as current national 
and international laws stand, only human creators are 
entitled to own copyrights.  

Unlike with other types of intellectual property rights (e.g. patents and trademarks), registration 
is not a prerequisite for a work to be copyright-protected. Copyright arises automatically from 
the moment the work  is  created and it applies internationally. In accordance with the Berne 
Convention, authorship of a work shall be presumed based on the name or pseudonym (where 
no doubts exist as to the identity of the author) that appears in the work, in the absence of proof 
to the contrary (6). 

Notwithstanding, registration helps to prove ownership in the event that legal disputes  arise or 
in cases of infringement. Some MS provide a system for the voluntary registration of works. For 
example, the Spanish Ministry of Culture and Sports has instituted a Copyright Registry  (7) that 
allows for  the registration of  any  type of  work,  including contracts related to  copyrights. In 
Greece, the Hellenic Copyright Organisation has introduced an online service that enables authors 
to timestamp (8) their work and thus prove its existence from a specific date. Belgium provides a 

(4) 

(2)  World Intellectual Property Organisation, https://www.wipo.int/copyright/en/. 
(3) 

The Berne Convention deals with the protection of copyright works and the rights of their authors. As of April 2023, 181 states 
are signatories to the Berne Convention. For more information, please go to https://www.wipo.int/treaties/en/ip/berne/. 
Art. 2 of the Berne Convention provides a comprehensive and non -exhaustive list of examples of works protected by copyright 
protection. 
TRIPS Agreement, article 9(2). 
Art.  15 of the Berne  Convention – transposed into EU  law by  Article 5 of Directive 2004/48/EC (known as the enforcement 
directive). 
(7)  Ministerio 

Intelectual, 

Propiedad 

Deporte – 

Gobierno 

Registro 

España, 

Cultura 

(5) 
(6) 

de 

de 

de 

y 

https://www.culturaydeporte.gob.es/cultura/areas/propiedadintelectual/mc/rpi/inicio.html . 
Hellenic Copyright Organisation, https://opi.gr/en/timestamp. 

(8) 

7 

 
 
                                                             
 
 
 
 
 
service that enables creators to record their ideas (9)  (e.g. a lyric, script or song). In Germany, 
copyright owners can deposit their work with a lawyer or a notary as a means to prove copyright 
ownership (10). Existing registration practices, while voluntary in nature, help to strengthen an 
author’s position by providing them with factual evidence of their authorship. 

Copyright grants owners certain rights over their work. These fall under two main categories. 

Economic rights  (also known as patrimonial rights). These are associated with the commercial 
exploitation of the work and give rightholders exclusive rights to authorise or prohibit certain 
acts  involving their work,  including the reproduction, translation, distribution, broadcasting, 
adaptation, communication to the public and making the work available. Economic rights also 
entitle rightholders to be remunerated for the authorised use of their work by others. Despite 
being exclusive, economic rights can be transferred or licenced to a third party. 

Moral rights.  These protect the non-commercial interests of authors and allow them to control 
how  their work  is used  outside the  commercial sphere. In particular, moral rights recogni se 
authors’ right to claim authorship over their works and assert its authenticity and integrity by 
objecting to changes to the work that could harm their reputation (11). Unlike economic rights, 
moral rights cannot be waived or transferred, which means that they remain with authors during 
their lifetime and cannot be passed on to others. 

Copyright law  also  protects neighbouring  rights  (also  known  as  related rights), which are 
attributed to certain categories of beneficiaries that play a key role in making works accessible to 
the  public, namely performers (e.g.  actors,  singers, dancers),  producers of  phonograms and 
broadcasting organisations. With a  few exceptions (e.g. duration of  the rights), neighbouring 
rights work similarly to copyrights in that the legal protection provided confers economic rights 
to  the  beneficiaries  and,  in  some  legislations,  moral  rights,  in  particular  with  regard  to 
performers. Such is the case in Portugal, where the national legislation on copyright confers  on 
performers the same moral rights as authors (right of authorship and right of integrity over the 
performances) (12). 

Copyright  and  neighbouring rights  are  essential  to  guaranteeing that  authors,  performers, 
producers and broadcasters can enjoy and benefit from their work, and to incentivising creative 
industries that benefit economies and the public at large. Chapter 3 will explore in more detail 
some of the infringements that threaten the rights of copyright holders in the information society. 

(9) 
Benelux Office for Intellectual Property, https://www.boip.int/en/entrepreneurs/ideas/ideas. 
(10)  Philipp Beck, German copyright law, https://www.beck-law.eu/en/lexicon/german-copyright-law/. 
(11)  Berne Convention, art. 6bis(1), https://www.wipo.int/wipolex/en/text/283698 . 
(12)  Art. 180 and art. 182 of the Portuguese Code of Copyright and Related Rights. 

8 

 
 
 
 
 
                                                             
Chapter 2 – Legal framework for copyright protection 
and enforcement 

International benchmarks 

At the international level, TRIPS is the main multilateral instrument setting out obligations for 
domestic IP enforcement regimes (13). The agreement establishes core minimum standards for 
the enforcement of  IP  rights across  World Trade Organization (WTO)  member countries (14). 
These are addressed in Part III of TRIPS, which contains 20 provisions that define the general 
enforcement obligations incumbent on WTO member countries, by identifying a set of procedures 
and remedies that should be available under national enforcement regimes to ensure effective 
action against infringements (15). 

Under these categories of procedures and remedies are civil and administrative procedures and 
remedies (articles 42–49), which include, but are not limited to, access to  evidence, the use of 
injunctions, payment of  damages and  other  expenses, and  the  disposal  of  infringing goods. 
Provisional measures are the second category of procedures identified in TRIPS (article 50) and 
they broadly encompass measures to prevent an infringement of IP rights from occurring in the 
first place, avoid the infiltration of the legal supply chain and the preservation of evidence related 
to the infringement. Thirdly, procedures related to the border measures are identified (articles 
51–60), which deal with the rights of rightholders to request the suspension of the release of illicit 
goods into the chain of commerce and their right of inspection of such goods, as well as ex officio 
actions  by  national  competent authorities at  their  borders  and  powers  of  destruction and 
disposal. Lastly, but most importantly for the purposes of this report, are measures concerning 
criminal procedures and penalties (article 61)  that member countries shall have  in  place to 
properly  address  instances  of  wilful  trademark  counterfeiting  or  copyright  piracy  on  a 
commercial scale. 

These measures are designed to ensure the existence of  an effective mechanism in the TRIPS 
member countries to prevent and respond to acts of infringement of the IP rights recognised in 
the  TRIPS  agreement,  with  the  ultimate  objective  of  serving  as  a  deterrent  to  future 
infringements.  

Article 61 of TRIPS deals specifically with the criminal enforcement of IP infringements. It states 
that: 

‘Members shall provide for criminal procedures and penalties to be applied at least in cases of 
wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available 
shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently 
with the level of  penalties applied for crimes of a corresponding gravity. In appropriate cases, 
remedies available shall also  include the seizure, forfeiture and destruction of  the infringing 
goods  and of  any materials the predominant use of  which has been in the commission of  the 
offence. Members may provide for criminal procedures and penalties to be applied in other cases 

(13) 

Article 10 of the Budapest Convention on Cybercrime also calls on its State parties to criminalise the infringement of copyrights 
and related rights in line with their obligations under other major treaties and agreements. In defining the conducts that should 
be subject to criminal enforcement under national law, article 10 of the Budapest C onvention largely adopts the criteria set in 
article 61 of TRIPS – that the infringing act is committed wilfully and on a commercial scale – adding to it a third element, namely 
that the act is committed by means of a computer system. 
For a complete list of WTO member countries, please visit https://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm. 

(14) 
(15)  Article 41 of the TRIPS Agreement. 

9 

 
 
                                                             
of infringement of intellectual property rights, in particular where they are committed wilfully 
and on a commercial scale’. 

TRIPS enabled international IP law to move from a space absent of any obligations on criminal IP 
enforcement to one containing a set of commonly agreed international minimum standards for 
conducts that necessitate a more punitive response. 

Nevertheless,  the language  of article 61 gives  WTO  member countries ample policy  space to 
implement criminal procedures tailored to their domestic circumstances. Indeed, an analysis of 
article 61 reveals the somewhat limited scope of this provision, which is worth addressing briefly. 

Firstly, it sets an obligation on member countries to provide criminal sanctions only in cases of 
wilful  trademark counterfeiting and  copyright  piracy.  This  means  that  the  decision  on  the 
criminalisation of infringements of other IP rights (e.g. patents, plant variety rights, geographical 
indications, trade secrets), even if committed wilfully and on a commercial scale, is left to member 
countries. Accordingly, some countries have chosen to deal with infringements of certain IP rights 
outside of criminal courts. Such is the case of infringements of plant variety rights in Portugal or 
patent infringements in Latvia. 

Importantly, infringements of trademark counterfeiting and copyright piracy must be committed 
wilfully and on a commercial scale. While the former is a rather straightforward requirement, 
denoting an awareness of the infringing activity, the latter is less so and, as discussed later in this 
report, provides a lot of leeway for national legislators.  

WTO  countries are  given  the option  to  choose  between imprisonment or  monetary fines to 
remedy infringements of wilful trademark counterfeiting and copyright piracy on a commercial 
scale. The choice of remedy must be in line with the penalties applied at na tional level to crimes 
of a comparable nature, thus suggesting that this will follow domestic practice in other areas of 
national legislation. Accordingly, the length of imprisonment and the amount of the fines issued 
tend to vary significantly across countries. Article 61 also foresees other remedies, including the 
seizure,  forfeiture  and  destruction  of  the  infringing  goods  or  materials  used  to  commit 
counterfeiting or piracy. By requiring that these measures be available in appropriate cases, the 
provision gives countries a generous discretion to  decide in which situations these remedies 
should apply.  

Despite  the  success  of  TRIPS  in  introducing a  certain  level  of  uniformity and  harmonising 
important aspects of IP rights enforcement, the flexibilities inherent to article 61 have led to the 
emergence of different standards for the criminal enforcement of copyright infringements across 
various countries. These will be explored in more detail throughout this report.  

EU standards for the harmonisation of copyright protection and 
enforcement 

The  EU  does not  have an  exclusive act  on  copyright. Instead, EU copyright law consists  of  a 
number of  different  pieces  of  legislation that  address various  aspects  of  copyright  (the  EU 
copyright acquis).  The EU directives and regulations enacted so far in this area have helped to 
reconcile certain aspects of copyright protection and enforcement. 

One of the most important legal acts is Directive 2001/29/EC (commonly known as the InfoSoc 
directive), enacted to  implement the WIPO Copyright Treaty. This  directive harmonises the 
protection of copyrights and related rights in the information society across the EU. It does so, in 
part,  by  recognising  the  exclusive  rights  of  copyright  owners –  the  right  of  reproduction 

10 

 
 
(Article 2), communication to the public (Article 3)  and distribution (Article 4) – and possible 
exceptions or limitations to the reproduction right (Article 5). 

On the side of enforcement, Directive 2004/48/EC (best known as the enforcement directive or 
IPRED) has been the main instrument to address IP right infringements, including infringements 
of copyrights, at the EU level. In essence, the directive sets an obligation for MS to implement a 
regime  of  (fair  and  equitable)  civil  measures,  procedures  and  remedies  to  achieve  the 
enforcement of  IP  rights in  the  EU.  These  are  intended to  have an  effective,  dissuasive and 
proportional effect  with the  aim  to  prevent future  infringements. As  a  whole,  the  directive 
harmonises rules around evidence (Articles 6 and 7), the right of information (Article 8), seizure 
and destruction of illicit goods and the materials used in their production (Article 10), injunctions 
(Article 11), damages (Article 13), legal costs (Article 14) and the publication of judicial decisions 
(Article 15). 

The  InfoSoc  and  enforcement  directives have  been  instrumental in  implementing uniform 
standards for key aspects of copyright protection and enforcement, thereby helping to minimise 
legislative differences between MS  and guaranteeing a more uniform level playing field with 
higher standards of protection across the EU. 

In the area of  criminal law however, no EU instruments exist, as the enforcement of copyright 
infringements remains a matter of national competence. Hence, criminal responses to copyright 
infringements  tend  to  vary  considerably  across  EU  countries,  reflecting,  among  others, 
differences in national sanctions regimes. This is particularly true with respect to the minimum 
and maximum prison sentences, which tend to vary considerably between countries. 

11 

 
 
 
 
 
 
Chapter 3 – Building blocks of copyright piracy 

The elements of a  criminal copyright offence are the building blocks upon which a successful 
prosecution is built and prosecutors need to be able to prove them in order to obtain a conviction. 

As  shown  earlier, article 61  of  the  TRIPS agreement sets three minimum standards for the 
application of  criminal procedures and penalties to copyright piracy. These include the act of 
piracy  itself  (the  infringement), wilfulness  and  commercial  scale.  Nevertheless, the  TRIPS 
provisions give member countries plenty of room to legislate what types of conducts should be 
criminalised and the applicable penalties. 

The following section will examine the extent to which the elements of copyright piracy defined 
by TRIPS are reflected in national jurisdictions and how they are construed in the legislation and 
court practice of MS. 

Article 61 TRIPS 

‘Members shall provide for 
criminal procedures and 
penalties to be applied at 
least in cases of wilful 
trademark counterfeiting 
or copyright piracy on a 
commercial scale’. 

Figure 1. Minimum standards for the institution of criminal procedures and sanctions established in article 61 of TRIPS 

Element 1: Copyright infringement 

Footnote 14 to article 51, TRIPS 

the 

consent  of 

Pirated copyright goods shall mean 
any goods  which are copies  made 
without 
the 
person  duly 
rightholder  or 
authorized by  the  right holder  in 
the  country  of  production  and 
which  are  made  directly  or 
indirectly from an article where the 
making  of  that  copy  would  have 
constituted  an  infringement  of  a 
copyright or  a  related right under 
the 
the  country  of 
law  of 
importation. 

Piracy  is  often  used  to  describe  unauthorised acts  of 
reproduction  or  dissemination  of  copyright-protected 
content that are  not  covered by  one  of  the  exceptions 
prescribed in national laws. The TRIPS agreement does 
not define copyright piracy, but it does offer a definition 
of pirated goods in footnote 14 to article 51. 

Applying  the  TRIPS  article  51  definition  of  pirated 
copyright  goods  to  make  sense  of  the  concept  of 
copyright  piracy  may  lead  to  the  interpretation that 
copyright  piracy  is  restricted to  acts  of  reproduction. 
However, national legislation and  court  practice show 
that criminal liability in copyright cases extends beyond 
acts  of  reproduction  and  covers  violations  of  other 
exclusive  rights  recognised  in  international,  EU  and 
national IP laws. 

12 

 
 
 
 
 
 
 
 
 
 
 
 
governing 

TRIPS was created at a time when piracy was 
limited to trading in illegal copies of physical 
(copyrighted) goods. Its definition of pirated 
copyright goods has become outdated in the 
context of online copyright piracy, as it fails 
to  address  the  phenomenon  of  virtual 
infringements of copyrighted works. 

While extensively used at the international level, 
the term piracy does not have a place in national 
copyright 
legislations 
infringements (mostly copyright acts and criminal 
codes) across the EU. Instead, national legislations 
adopt  a  slightly  different  and  more  specific 
language  to  refer  to  illegal  acts  that  violate 
copyrights.  National  legislations  thus  show  a 
copyright 
preference 
infringement,  unlawful  exploitation  of  copyrights,  or  copyright  offence  to  describe the 
illegal conduct – one of the key elements of piracy. In this report, the terms piracy and copyright 
piracy will be used interchangeably. 

terms  such  as 

criminal 

for 

International and EU efforts  to reconcile aspects of  protection and enforcement of  copyrights 
have enabled a certain degree of harmonisation across national legislations, not least concerning 
the conducts that constitute a copyright infringement. 

Following on from the main international (Berne Convention and WIPO Copyright Treaty) and 
EU  legal acts  (Directive 2001/29/EC), most national laws on  IP in  the MS  recognise authors’ 
exclusive rights  to  reproduction, distribution and communication to  the  public. An  act  that 
violates any  one  of  these exclusive rights is  a  copyright infringement that can  be  subject to 
criminal liability, should the other elements of the crime foreseen in national laws (e.g. wilfulness 
and commercial scale) be fulfilled. 

However, rapid technological developments and improvements in connectivity have resulted in 
a change of  online behaviour, and in turn, in the way copyrights are exploited online, forcing 
national legislators and courts to contend with new legal problems. This has at times resulted in 
contradictory legal interpretations of the same act – including by courts in the same country – 
and  the widening of  the legal  gap  between national jurisdictions,  thus hampering efforts to 
harmonise copyright protection and enforcement further. 

In some cases, the solution to this problem has lain in the rulings of the CJEU, which have been 
instrumental in promoting a certain level of uniformity with respect to how MS respond to novel 
forms of copyright infringement. 

What is a copyright infringement under EU and national laws? 
A  copyright infringement is essentially a violation of  one  of  the exclusive rights of  copyright 
owners. Before exploring national legislative approaches to criminal copyright infringements and 
the existing case-law in this area, it is important to examine in more detail the exclusive rights 
recognised by EU and national law. EU and most national legislations recognise three exclusive 
rights of rightholders, namely the right of reproduction, the right of distribution and the right of 
communication to the public. Some MS may also provide for other exclusive rights, such as the 
exclusive right of exhibition in Germany (16). 

(16) 

S 15(1)(3) of the German Act on Copyright and Related Rights. 

13 

 
 
 
                                                             
 
These rights remain largely undefined in major treaties 
and  conventions, and  in  EU  and national legislation. 
Consequently, many of the answers to the question of 
what constitutes copyright infringement derive from 
case-law, following the interpretation by national and 
EU  courts  of  various  provisions  in  the  respective 
(national and EU) laws. 

This  section will explore a  subset of  online conducts 
that  infringe  the  right  of  communication  to  the 
public (17) in the information society. It starts with an 
introduction  to  the  right  of  reproduction  and 
communication to  the public, and continues with  an 
assessment  of  selected  infringing  acts  in  light  of 
national legislation and court practice in MS. 

Figure 2. Main exclusive rights of copyright holders 
recognised in EU and national laws 

Right of reproduction 
While the right of reproduction is not the focus of this 
report, it is worth a mention, as it assumes relevance in 
the context of copyright infringements in the online 
environment. This is because arguably every use (and 
infringement) of copyright-protected works, whether in 
the online or the physical world, involves reproducing 
the work first. 

The right of  reproduction is one  of  the exclusive rights 
granted to rightholders in copyright law, allowing them 
to control the making of a copy of their work. Essentially, 
this  right  entitles  copyright  holders  to  authorise  or 
prohibit reproductions of their works by others. 

The  right of  reproduction is  largely harmonised at  EU 
level.  Within  EU  copyright  legislation,  the  right  is 
enshrined in  Article 2  of  the  InfoSoc  directive, which 
transposes article 9 of the Berne Convention (18). 

Article 2 – Directive 2001/29/EC 

Member  States  shall provide  for  the 
exclusive right to authorise or prohibit 
direct  or 
temporary  or 
permanent reproduction by any means 
and in any form, in whole or in part:  

indirect, 

(a) for authors, of their works; 

(b) for performers, of fixations of their 
performances; 

(c) for phonogram producers, of their 
phonograms; 

(d)  for  the  producers  of  the  first 
fixations  of  films,  in  respect  to  the 
original and copies of their films; 

Though  not  defined  in  international  or  European 
legislation, reproduction in copyright law guarantees a 
wide scope of protection that covers various beneficiaries 
(authors,  performers,  phonogram  producers  and 
broadcasting organisations, among others) and different 
forms  and  modes  of  reproduction  (both  direct  and 
indirect, temporary and  permanent, whole or  partial) 
regardless of the means used. This broad interpretation 
is highlighted in Recital 21 of  Directive 2001/29/EC, which asserts that ‘a broad definition of 
these acts is needed to ensure legal certainty within the internal market ’. 

(e)  for  broadcasting organisations, of 
fixations of their broadcasts, whether 
these  broadcasts  are  transmitted  by 
wire or over the air, including cable or 
satellite.  

(17)  These two rights are the most  pertinent exclusive rights in the context of online copyright piracy. The right of distribution  is 

mostly applicable in cases of physical infringements of copyrights and is therefore not ad dressed in this report. 

(18)  The Berne Convention is available at https://www.wipo.int/wipolex/en/text/283698. 

14 

 
 
 
                                                             
 
In the MS which have directly transposed Article 2 of the InfoSoc directive into national law, the 
right of reproduction equates with different uses. These include, for example, the production of 
copies of a work (in Germany (19), Croatia (20) and Cyprus  (21)), the multiplication of copies (in 
Italy (22)), physical fixation of a work that allows it to be communicated in an indirect way (in 
France (23)) or the direct or indirect duplication of a work or part of it (in Bulgaria  (24)). 

In case-law, the exclusive right of reproduction tends to be rather straightforward and uniformly 
interpreted and applied throughout EU jurisdictions, including in cases of copyright infringement 
in the digital world. 

Right of communication to the public 

Article 3 – Directive 2001/29/EC 

(1)  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. 

(2)  Member States shall provide for the exclusive right to 
authorise or prohibit the making available to the 
public, by wire or wireless means, in such a way that 
members of the public may access them from a place 
and at a time individually chosen by them: 

The  right  of  communication  to  the 
public  is  one  of  the  three exclusive 
rights (the other two being the rights 
of reproduction and distribution) that 
copyright  holders  have  over  their 
works. 

Within the EU’s regulatory framework 
for  copyright and related rights, the 
exclusive right  of  communication to 
the public is enshrined in Article 3 of 
the 
directive,  which 
transposes  article  8  of  the  WIPO 
Copyright Treaty (1996) (25). 

InfoSoc 

original and copies of their films; 

(d)  for broadcasting organisations, of fixations of their 

(a)  for performers, of fixations of their performances; 
(b)  for phonogram producers, of their phonograms; 
(c)  for producers of the first fixations of films, of the 

The  right  of  communication  to  the 
public  encompasses  two  separate 
acts –  the  right of  communication to 
the  public  and  the  right  of  making 
available  to  the  public  copyrighted 
works. 
sometimes 
perceived as  a  separate right (26),  is 
in  today’s 
particularly  important 
information 
whereby 
society 
streaming  services  and  on-demand 
transmissions have become central to 
the way people consume content. This 
right  is  an  important  form  of  legal 
protection  for  rightholders  against 
those  who  upload  to  the  internet files  with  protected works  and  claim  no  infringement of 
copyrights by virtue of only making the files available. 

(3)  The rights referred to in paragraphs 1 and 2 shall not be 
exhausted by any act of communication to the public or 
making available to the public as set out in this Article. 

broadcasts, whether these broadcasts are 
transmitted by wire or over the air, including by 
cable or satellite.  

latter, 

The 

S 16(1) of the German Act on Copyright and Related Rights. 

(19) 
(20)  Art. 19 of the Croatian Copyright and Related Rights Act. 
(21)  Art. 2 of the Cypriot Copyright and Related Rights Law. 
(22)  Art. 13 of the Italian Copyright Law. 
(23)  Art. L122-3 of the French Intellectual Property Code. 
(24)  Art. 102 of the Bulgarian Copyright Act. 
(25)  The WIPO Copyright Treaty is available at https://www.wipo.int/wipolex/en/text/295166. 
(26)  Hugenholtz, P. B. and van Velze, S. (2016), ‘Communication to a new public? Three reasons why EU copyrigh t law can do without 

a “new public”’, SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2811777 . 

15 

 
 
                                                             
 
 
 
 
The right of communication to the public has taken a central place in EU copyright law discourse. 
This  is  to  an  extent  explained by  the  fact  that  the  concept  remains undefined in  EU  and 
international legislation governing copyrights and their enforcement.  

Nevertheless, the InfoSoc directive provides some guidance (albeit limited) on the scope of the 
right by highlighting a few important aspects. 

In line with its Recital 23, one of  the key principles of the communication to the public right is 
that it should be interpreted broadly. This is to ensure a high level of protection for rightholders. 
Recital 23 further adds that the right covers all communication to the public not present where 
the communication originates, including transmissions or retransmissions of the work by wire or 
wireless means, or through broadcasting. 

The scope of the act of making available is similarly described in Recital 24, which provides that 
the right covers  all  acts  of  making available sound recordings, fixation of  performances and 
broadcasts to a public not present where the act of making available originates.  

The lack of a clear definition and limited guidance on the right of communication to the public has 
left its interpretation and development largely to national courts. Against this backdrop, the CJEU 
has been playing an instrumental role in helping to clarify its scope and operation in the context 
of  preliminary rulings  from  national  courts (27).  This,  it  is  argued,  has  led  to  a  piecemeal 
development of the right of communication to the public (28).  

Case-law on the right of communication to the public and the making 
available right – guidance from the CJEU 
The  case-law of  the CJEU  has been essential for  a  better understanding  of what constitutes 
communication to the public in the context of copyrights, providing national courts with concrete 
guidance on how to apply the provisions of Article 3 of the InfoSoc directive to different situations 
involving copyright infringement cases.  

This right was first addressed by the CJEU in the Spanish case SGAE v Rafael Hoteles (29), in which 
the Court was asked whether the cable retransmission of a broadcast to TV sets in hotel rooms 
constituted an act of communication to the public under Article 3(1) of the InfoSoc directive.  

The  CJEU  began  to  set  out  the  initial  (complementary)  criteria  for  the  existen ce  of  a 
communication to the public, namely (a) an act of communication, (b) to a public. These are part 
of a two-step test which should be carried out as an individual assessment in each individual case. 

  First criterion: act of communication 

Though not providing a specific definition of  communication, some important aspects can be 
derived from the CJEU ruling. In particular, the Court noted that an act of  communication can 
occur  regardless of  access  by  the  end  users.  In  this  way,  an  act  of  com munication can  be 

ibid. 

(27)  Koo, J. (2019), The Right of Communication  to the Public in EU Copyright  Law, Hart Publishing, Oxford, pp. 46–47. 
(28) 
(29)    Judgment of the Court (Third Chamber) of 7 December 2006, Sociedad General de Autores y Editores de España (SGAE) v Rafael 
Hoteles SA, C-306/05, ECLI:EU:C:2006:479. 

16 

 
 
                                                             
understood as any act that establishes a new access 
channel to  copyright-protected content, irrespective 
of  whether those  allowed  access  make  use  of  that 
opportunity.  

By  alluding  to  the  role  of  the  hotel  as  the 
‘organisation which intervenes, in full knowledge of 
the consequences of its action, to give access to the 
protected  works  to  its  customers’ (30),  the  Court 
further highlighted the central role of the provider 
and  their knowing  intervention  to  give  access  to 
protected works for an act of  communication to be 
established. 

‘For  there  to  be  an  act  of  communication, it  is 
sufficient that  the  work  is made  available to  the 
public in such a way that the persons forming that 
public may access it. Therefore, it is not decisive … 
that  customers  who  have  not  switched  on  the 
television have not actually had access to the works’.  

SGAE v Rafael Hoteles (*)  
(*)  See  footnote 29, paragraph 43. 

In  the subsequent case of  Football  Association  Premier  League  v  QC  Leisure ,  concerning the 
broadcasting of football matches in public spaces, the CJEU complemented its previous guidance 
on  the  concept  of  communication,  indicating that  the  term  communication  refers  to  ‘any 
transmission of the protected works, irrespective of the technical means or process used ’ (31). 

  Second criterion: public 

In SGAE v Rafael Hoteles, the CJEU also explored the concept of public in 
the context of  a communication of copyright-protected works. It held 
that the term public ‘refers to  an indeterminate number of potential 
television viewers’ (32) and that, for there to be a public, ‘a fairly large 
number of persons are involved’ (33). 

Importantly, the Court ruled  that the  nature of  the place  (whether 
public  or  private)  where  the  communication  takes  place 
is 
irrelevant (34) for the assessment of the public criterion. This is because 
the purpose of the right of communication to the public is to protect the 
right of making copyrighted works available in a way that the public can 
decide when and where to access them (35), rather than to protect only 
communications in public spaces (communication to the public, not in 
public). 

In  Rafael  Hoteles,  the 
CJEU concluded that the 
customers  of  the  hotel 
constituted a new public 
within  the  meaning  of 
Article 3  of  the  InfoSoc 
directive since, without 
the  intervention  of  the 
the 
through 
hotel 
installation  of  TV  sets, 
customers would not be 
able to  enjoy  the  initial 
act  of  communication 
(broadcasting).  

In defining this second criterion, the CJEU further held that for an act of 
communication to  occur,  the  target public must  be  a  new  public – 
defined as ‘a public different from the public at which the original act of communication of the 
works is directed’ (36). 

  Same technical means 

Following the guidance of the CJEU in Rafael Hoteles, every retransmission of a work must target 
a new public to be deemed an act of communication to the public. However, an exception to this 

(30) 
(31) 

(32) 
(33) 
(34) 
(35) 
(36) 

See footnote 29, paragraph 42.  
Judgment of the Court (Grand Chamber), 4 October 2011, Football Association Premier League Ltd and  Others v QC Leisure and 
Others, C-403/08, ECLI:EU:C:2011:631, paragraph 193.  
See footnote 29, paragraph 33. 
Ibid, paragraph 38. 
Ibid, paragraph 50. 
Ibid, paragraph 51. 
Ibid, paragraph 40. 

17 

 
 
                                                             
 
rule emerged in a later ruling – ITV v TVCatchup (37) – which concerned the first case of internet 
retransmission of protected works initially broadcast on TV channels. 

In it, the CJEU concluded that since the act of internet retransmission was technically distinct from 
the  original  act  of  communication  by  terrestrial  broadcast,  it  constituted  a  new  act  of 
communication requiring fresh authorisation from the rightholders (38) regardless of the public 
reached. Accordingly, since the  two  transmissions were carried out  using  different technical 
means, each should be treated separately and authorised individually. 

As  it  stands,  national  courts  should  side  with  infringements  of  the   exclusive  right  of 
communication to the public in cases where a copyright-protected work is communicated to a 
new public or where the act of  retransmission is technically different from the original act of 
communication. Annex I provides a schematic of communication to the public based on the CJEU 
guidance.  

What acts constitute an infringement of the right of communication to the 
public and the making available right? 

With the advent of the internet, the making available aspect of the communication to the public 
right became a key issue in cases before national courts and, consequently, cases referred to the 
CJEU.  Despite  concerning traditional broadcasting and  retransmission methods, the  criteria 
established in Rafael Hoteles remained a starting point for cases concerning communication of 
copyright-protected works to the public in the digital environment. 

Nevertheless, the new challenges posed by the dissemination of protected content via the internet 
led to the emergence of a new set of cases on the communication to the public right and, in turn, 
the introduction of new parameters for its interpretation and new requirements to assess the 
new public criterion. 

Today, the interpretation of communication to the public continues to expand as novel ways of 
infringing copyrights emerge and new legal questions are brought before the CJEU. The right of 
communication to the public itself has also evolved, with national courts widening its scope (and  
in some cases limiting it) to certain acts and technologies (39). This has resulted in an increasing 
number of instances being regarded as communication to the public. 

A. Hyperlinks 
Hyperlinks have long been a commonly used method to share content online. While proving an 
important tool  for  the dissemination of  culture and the promotion of  freedom of  expression, 
hyperlinks have  simultaneously enabled the  rapid  and  large-scale sharing and  widespread 
proliferation of illicit content online. 

It is thus no wonder that the use of hyperlinks to provide access to copyright-protected content 
on the internet has been a recurrent issue before national courts, and in turn in CJEU case -law. 

(37)     Judgment of the Court (Fourth Chamber), 7 March 2013, ITV Broadcasting Ltd and  Others v TVCatchUp  Ltd.,  C-607/11, 
ECLI:EU:C:2013:147 
(38) 
(39)  Koo, J. (2019), The Right of Communication  to the Public in EU Copyright  Law, Hart Publishing, Oxford, pp. 46–47. 

See footnote 37, paragraph 26. 

18 

 
 
                                                             
In 2006, the CJEU ruled for the first time on this issue in what has become one of the best known 
cases on hyperlinking and the making available aspect of the communication to the public right – 
Nils Svensson and Others v Retriever Sverige AB (40), commonly known as the Svensson case. 

The Svensson case concerned a website that provided 
hyperlinks to articles written by a group of journalists 
published on  a  newspaper’s website without access 
restrictions.  The  website,  journalists  argued,  made 
available  their  articles  to  clients  without  their 
authorisation, thereby infringing their exclusive right 
to communicate the works to the public. 

In Svensson, the CJEU stressed the need 
for  an  individualised  assessment  of 
cases based  on knowledge and  profit. 
The reasoning for this stems from the 
need to ensure a proper functioning of 
the internet and the full enjoyment and 
exercise of users’ rights. To this effect, 
the  CJEU  explained  that  automatically 
categorising all  hyperlinks to content 
published  on  other  websites  as 
communication  to  the  public  would 
curtail the  freedom of expression and 
information of online users, and in turn 
jeopardise  the 
the 
internet. 

functioning  of 

that 

found 

Following  its  previously  established  two-step  test, 
highlighted  above, 
the 
the  CJEU 
communication of a work  (criterion 1)  had occurred, 
but the  work  had not  been  communicated to a  new 
public (criterion 2). In the Court’s reasoning, since no 
access restrictions had been put in place on the website 
where the works were initially published, the users of 
Retriever Sverige’s website would be able to access the 
works without the latter’s intervention. Accordingly, the lack of restrictive measures meant that 
the public contemplated in the initial communication made by the website that published the 
works  consisted of  all the potential visitors  to  the website. Thus, in  these circumstances, no 
authorisation was required from the copyright holders for the subsequent communication to the 
public on the website of the accused party. 

This has become a key ruling in the area of copyright infringements at EU level, as it provided 
relevant guidance as to when linking to copyright-infringing content in the internet constitutes 
an act of communication to the public. 

Figure 3. Criteria for communication to the public using hyperlinks set by the CJEU in the Svensson case 

  New criteria: profit and knowledge 

In a subsequent case – GS Media v Sanoma (41) – the CJEU addressed for the first time the initial 
unauthorised communication to the public of copyright-protected works through hyperlinks. 

(40) 

Judgment of the Court (Fourth Chamber), 13 February 2014, Nils Svensson and Others v Retriever Sverige AB, C-466/12, 
ECLI:EU:C:2014:76. 

(41)  Judgment of the Court (Second Chamber) of 8 September 2016, GS Media BV v Sanoma Media Netherlands BV and Others, C-

160/15, ECLI:EU:C:2016:644. 

19 

 
 
 
 
                                                             
 
 
 
GS Media operated a website that provided hyperlinks to other pages, on which 
pictures from  Playboy  magazine posted  without the  consent  of  the  copyright 
holder could be viewed. The CJEU introduced new criteria for the determination of 
the communication to the public right in instances where the work hyperlinked is 
not authorised by the copyright holder. 

The first criterion concerns profit. According to the Court, in instances where the 
posting of  hyperlinks is carried out  for profit (such as  in the present case), the 
person who hyperlinks to an unauthorised work is expected to have exercised all 
due diligence to verify that the work hyperlinked is not illegally published on the 
website to which the hyperlink gives access. In such cases, it should be assumed 
that those hyperlinking the content have done so in full knowledge of the protected 
nature of the content and the possible lack of  consent of the copyright holder to 
publish the works on the internet. 

Figure 4. New 
elements introduced 
by the CJEU in cases 
of hyperlinking 

This rebuttable presumption places the onus on individuals providing hyperlinks 
to prove that the conduct of hyperlinking to material illegally placed online does not constitute 
an act of communication to the public within the meaning of Article 3(1) of the InfoSoc directive. 
In this way, the element of profit has become central to the determ ination of knowledge. 

The second criterion concerns the knowledge that the hyperlink provides access to unauthorised 
work. Here, the Court asserted that where persons share a hyperlink without pursuing profit, it 
can be assumed that they did not know or ought to have known that the work hyperlinked was 
uploaded without the authorisation of the copyright holders. In these cases, the person does not 
act in full knowledge of the facts and therefore, no act of communication and no communication 
to the public occur. 

On  the contrary,  where those  providing hyperlinks know  or  ought  to  have  known  that the 
hyperlink leads to unauthorised material (i.e. by way of notification by the copyright holders), the 
act  of  hyperlinking is  deemed an  act  of  communication to  the public within the meaning of 
Article 3(1) of the InfoSoc directive. 

Annex  II  provides  a  schematic  of  communication to  the  public  based  on  the  new  criteria 
introduced by the CJEU in the GS Media ruling.  

The  Svensson  and  GS  Media  cases  highlight the  centrality of  consent  in  determining what 
constitutes  communication  to  the  public  of  copyright-protected  works  and  ensuring  the 
protection of this exclusive right in the online environment. 

  National approaches to the use of hyperlinks 

Following the CJEU’s decision in Svensson, national courts seem to have generally taken the view 
that  the  act  of  setting  a  hyperlink  to  content  available online  without  the  authorisation of 
rightholders constitutes an infringement of the exclusive right of communication to the public, 
including the making available aspect of the right, which can be criminalised should the other 
elements of the criminal offence be present. 

Courts in Spain have long dealt with cases of hyperlinking. The legal qualification of hyperlinks 
has traditionally been a contentious matter for the Spanish judiciary, often resulting in contrary 
decisions by different courts on the same matter (42). 

(42) 

See for  example case 453/13, available at Sentencia España Bajatetodo.com (elderechoinformatico.com)  and case 856/2015, 
available  at  https://www.bufetalmeida.com/698/la-audiencia-de-valencia-confirma-la-absolucion-de-zonaemule-tras-10-
anos-de-proceso.html,  both of which have arrived at different conclusions regarding the criminal liability of the defendant for 

20 

 
 
                                                             
 
Cases concerning hyperlinks frequently involve the 
creation of webpages on which links to copyright-
infringing  material  are  uploaded,  indexed  and 
categorised.  Spanish  courts  had  generally  ruled 
that  providers  of  links  to  IP-infringing  content 
online played a  mere passive role that exempted 
them from  criminal liability. Indeed, the defence 
has historically relied on  the infringer’s role  as a 
mere intermediary – limited to facilitating access to 
copyright-infringing content,  rather than  storing 
it – to avoid prosecution in cases of hyperlinking. In 
this  context,  Article 17  of  Law  34/2002 on  the 
services of  the information society and electronic 
commerce (43)  has  offered  a  safe  harbour  for 
hyperlink providers to evade criminal liability. 

In 2015, Spain undertook a reform (44) of its penal 
code,  introducing  new  provisions  on  IP.  Among 
these was a new article (270(2)) that criminalises 
the conduct of  those who actively facilitate access 
to  copyright-protected  works  placed  on  the 
internet without the authorisation of rightholders 
lists  of  hyperlinks. 
by  providing  classified 
Moreover,  to  be  criminalised the  conduct  must 
meet two additional criteria, namely to be carried 
out  with  a  profit  motive  and cause  damage to  a 
third party.  

This provision aims directly at prevailing conducts 
that in previous cases would exonerate infringers 
due to their perceived role of  mere facilitation of 
access 
copyright-protected  works.  The 
introduction of  a  provision that deals specifically 
with hyperlinks further speaks to the importance of 
this technological method in facilitating large-scale 
abuse of copyrights on the internet. 

to 

Combined, the Spanish reform of  the  penal code 
and  the  CJEU  jurisprudence – on  which  national 
courts  often  rely –  have  led  to  a  change  in 
jurisprudential practice in  Spain,  whereby court 
decisions  converge  towards  finding  infringers 
criminally liable, and in some cases handing down 
heavy sentences. For an example of  how national 
courts  have  been  treating  the  conduct  of 

Case 1 – Spain  

National High Court (117/2016) 

This case concerned a group of individuals 
(two Spaniards aided by five Ukrainians) 
who created a webpage that allowed users 
to  access  a  high  volume  of  copyright-
protected  content made  available online 
without 
the 
the 
rightholders.  

authorisation  of 

In  finding  the  defendants  guilty  of  an 
aggravated crime against IP (art. 270 and 
271 CC), the court gave particular weight 
to  their  role  in  making  the  content 
accessible to  users –  directly  uploading 
the  material, selecting and  indexing  the 
content  so  that  it  could  be  directly 
streamed  by  users.  In  so  doing,  the 
defendants  went  beyond 
the  mere 
intermediary role  they  claimed to have, 
placing their conduct within the scope of 
an act of communication to the public. 

Creating  fake  accounts  to  mask  their 
involvement  in  uploading  the 
illegal 
content to the website further convinced 
the  court  that  the  defendants  had  full 
knowledge  of  the  illicit nature  of  their 
conduct and acted with intent.  

This  case  was  particularly impactful in 
Spain, not least due to the (unusually) high 
prison 
the 
sentences  handed 
defendants  (3 years),  which  enabled 
courts  to  send  a  strong  message  to  IP 
infringers. 

to 

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hyperlinking to illegal content online. 

(43)  This provision deals with the responsibility of  providers of services  that facilitate  links to online content. It  establishes   the 

conditions under which their conduct is exempt of responsibility for facilitating access to illicit content.  

(44)  The reform was introduced by the Organic Act 7/2015 . 

21 

 
 
                                                             
  
 
hyperlinking following the penal code reform and the CJEU Svensson ruling, please refer to Case 1. 

In Germany, courts have also shown a tendency to follow the CJEU’s line of reasoning, examining 
cases on the provision of hyperlinks in light of the general conditions established by the CJEU for 
the communication to the public (45). 

In  cases  where hyperlinks circumvent the  technical measures employed by  rightholders to 
control access to their work, German courts have ruled in favour of an infringement of th e right 
of making a work available to the public (see Case 2). Accordingly, the existence of a hyperlink 
that  unlawfully makes  protected works  available to  the  public  appears to  be  sufficient  for 
establishing infringement. In such cases, the defence that infringers have limited themselves to 
the provision of hyperlinks instead of other acts such as the reproduction, editing, uploading or 
storing of the works does not seem to bear much weight in the consideration of German courts.   

Even  before  the  CJEU’s  major  rulings on  hyperlinks (46),  the  Czech 
Supreme  Court  had  already  set  the  jurisprudence with  regard  to 
embedded  links,  where  it  qualified  the  posting  of  such  links  an 
infringement of the exclusive right of communication to the public (see 
Case 3). 

Such  a  decision  effectively  aligned Czech  jurisprudence with  what 
would  later  become  the  general  practice  of  courts  in  Europe, 
spearheaded by the CJEU. 

On the whole, the available decisions of national courts on the use of 
hyperlinks to facilitate access to IP-protected material on the internet 
seem to suggest a certain level of unanimity in case-law at the EU level. 
In this context, the CJEU jurisprudence, and in particular the Svensson 
ruling, has played a crucial role in attaining a degree of uniformity in 
the application of EU law on this subject. 

What is an embedded 
link? 

An embedded link is 
essentially the use of 
text to redirect users 
to another page 
instead of a URL. For 
example, instead of 
displaying the link to 
the Eurojust IPC 
Project page as 
https://www.eurojust.
europa.eu/intellectual
-property-crime-
project, the embedded 
link will look like this: 
IPC Project.  

The  role  of  operators  in  creating  and  administering  portals  that 
facilitate access to protected works, selecting, indexing and organising 
hyperlinks, and providing tools  that enable the exchange of  files between users, has been an 
important consideration for national courts in deciding whether a certain conduct infringes the 
right of  communication to the public of rightholders. Ultimately, national courts will side with 
copyright holders in cases where the hyperlink provided circumvents the restrictions applied by 
rightholders to prevent the unauthorised online dissemination of their work.  

Ever since the CJEU ruling in the Svensson case, some MS have adjusted their laws to provide 
more  clarity  and a  stronger legal  basis  to  combat online  piracy  through hyperlinks. Others 
continue to interpret national provisions in line with the reasoning of the CJEU. Future case -law 
of national courts will help to further determine to what extent the legal status of hyperlinks has 
been harmonised at the EU level and whether the legal understanding of their role in facilitating 
online piracy might evolve alongside new developments in information technology.   

(45)  Case 310 O 402/16, available at https://openjur.de/u/942708.html. 
(46) 

See also the BestWater  case, which deals with the issue of embedded links: Order of the Court (Ninth Chamber), 21 October 
2014, BestWater International GmbH v Michael Mebes and Stefan Potsch, C-348/13, ECLI:EU:C:2014:2315. 

22 

 
 
 
 
 
                                                             
 
Case 2 – Germany   

Case 3 – Czechia 

Aachen Local Court (334 Ls 158/10) 

Supreme  Court (8 Tdo 137/2013) 

The  defendant  set  up  a  film  portal  that 
allowed  users  to  download  copyright-
protected  works free  of charge. The  portal 
largest  file-sharing 
became  one  of  the 
websites in Germany.  

In  assessing  the  defendant’s  liability, the 
court  highlighted  the  distinction between 
cases where hyperlinks are used to provide 
access to a  file containing protected  works 
made available by an authorised person in 
another  website,  and  those  where  direct 
access  to  the  works  is  provided  through 
hyperlinks that  circumvent the  protective 
technical  measures 
by 
rightholders to open up public access to such 
works. In  the  reasoning  of  the  court,  the 
former  does  not  constitute  a  violation of 
copyrights, but the latter interferes with the 
rightholder’s exclusive rights.  

employed 

Rejecting the defendant’s claim of impunity 
for setting a hyperlink, the court noted that 
by  providing access through  his  portal  to 
freely 
copyright-protected  material  not 
available  on  the  internet,  the  defendant 
made  those  works available to  the  public 
(section  19  of  the  Act  on  Copyright  and 
Related Rights). This decision was informed 
by  the  fact  that  the  film  offer  in  the 
defendant’s  portal  was  not  targeted  at  a 
specific group of users, but at any visitor of 
the  portal.  Thus,  for  the  court  it  seemed 
irrelevant that the defendant did not possess, 
reproduce, edit  or upload the  works to the 
server  himself.  Making  them  available 
through his portal was enough. 

Similarly to  Case  1,  the  defendants  were 
given a prison sentence of more than 3 years, 
an  outcome  that  should  send  a  strong 
message to other online infringers.  

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This  case  concerned  an  appeal  to  the 
Supreme Court against the judgement of the 
Regional  Court  in  Ústí,  which  found  the 
defendant  guilty  of  an  infringement  of 
copyright, rights  related  to  copyright  and 
database rights pursuant to section 270(1) of 
the Penal Code. 

The defendant, a juvenile at the time of the 
offence, operated a website where he posted 
embedded links to pirated content posted in 
other internet pages without the consent of 
the rightholders.  

The Supreme  Court  upheld the  decision of 
the  lower  instance  court,  noting  that  the 
action  of  the  defendant 
infringed  the 
rightholders’ exclusive right to communicate 
their works to the public (section 18 of the 
Copyright Act) and did so intentionally.  

According to the  Court, the duration of the 
infringement  (10 months), the  intensity of 
the  conduct and  the  serious consequences 
that  resulted led to  the conclusion that the 
actions  of 
the  defendant  significantly 
interfered  with  the  exclusive right  of  the 
rightholders. 

In view of existing evidence, the Court was 
also satisfied that the defendant fulfilled the 
subjective element of intent. In particular, his 
tech-savviness  and  awareness  that  the 
works linked to were subject to copyright – 
following a  warning  letter  from  the  Anti-
Piracy Union informing him to  the  effect –
provided sufficient proof that  the  juvenile 
acted with the requisite intent. As a result, he 
was  sentenced  to  a  5-month  conditional 
prison sentence, which he ultimately did not 
serve.  

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23 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
B. Illegal streaming and internet protocol television 

Use of pre-loaded set-top boxes 

Despite representing a more recent trend in online infringement of copyrights, internet protocol 
television (IPTV)  services are  playing an  important role in  promoting piracy  in  Europe and 
abroad. According to  the Audiovisual Anti-Piracy Alliance, around 4.5 % of  the EU population 
used illegal IPTV services in 2021 (47). 

The predominance of  illegal IPTV  services in the piracy landscape is further evidence by the 
increasing  number  of  investigations at  EU  level.  Today,  illegal  IPTV  content  is  commonly 
distributed through set-top boxes  (or  TV  decoders)  pre-loaded with  malicious links  to  the 
copyright infringing material. 

A set-top box is a media player that allows users to play files stored on 
it (e.g. music and videos) and stream internet content. Set-top boxes 
have  a  very  user-friendly interface,  which  can  be  tailored  to  the 
preferences of the user – features that make them a widespread device, 
found in many homes today. While these boxes are entirely legal (48), 
their user-friendliness has made them attractive targets for criminals, 
who pre-install onto them apps that enable the illegal streaming of 
online content and sell them to everyday consumers. 

Figure 5. Example of a Kodi box / 
TV decoder 
Source: Google images. 

In 2015, the use of set-top boxes to stream illegal content reached the 
CJEU. In the Filmspeler case (49) – as it is commonly known – the accused sold various models of 
multimedia player (named filmspeler) on the internet, including on his own website. The players 
were equipped with an open source software, installed by the accused, which enabled users to 
play files, organised in structured menus. The accused also pre-installed on the device add-ons 
created and made available on the internet by third parties, some of which specifically linked to 
websites where protected content was made available without the consent of copyright holders. 
Upon  being activated by  the  media player, the  add-ons  retrieved the  desired content  from 
streaming websites, which users could view directly on their television screens when connected 
to the multimedia player. 

The Court ruled that the sale of the multimedia player, which enabled users to access copyright-
protected  content  made  available on  the  internet  without  the  consent  of  t he  rightholders 
constitutes an infringement of the exclusive right of communication to the public protected by 
Article 3 of the InfoSoc directive. 

In its assessment, the Court referred back to its established case-law on communication to the 
public. In addressing the first criterion of communication of a work, the CJEU noted that in pre-
installing add-ons that allowed users to directly access protected works published without the 
consent of copyright holders, and watch them on their television screens, the accused created a 
direct link between the streaming websites where the works were illegally published and the 
users. Accordingly, the conduct of the accused made it easier for users of the multimedia player 
to access the protected works, which would otherwise not be easily identifiable by members of 
the public. 

(47)  Audiovisual Anti-Piracy Alliance (2022), ‘Illicit IPTV in Europe’, https://www.aapa.eu/illicit-iptv-in-europe-an-aapa-economic-

report. 

(48)  Many major brands such as Amazon, Nokia, Xaomi and Xbox sell set-top boxes. 
(49)  Judgment of the Court (Second Chamber), 26 April 2017, Stichting Brein v Jack Frederik Wullems, C-527/15, 

ECLI:EU:C:2017:300. 

24 

 
 
                                                             
As regards the nature of the public, the Court took the view that the potential target public of the 
multimedia player included any person with an internet connection that was able to  buy the 
device. In this regard, it was also relevant that a large number of users had acquired the media 
player. As  a  result, the  communication of  protected works  was  directed at  an indeterminate 
number of potential recipients who comprised a public within the meaning of  Article 3 of  the 
InfoSoc directive. 

In determining whether the public reached was a new public, the Court applied the same criteria 
and reasoning as in GS Media. The advertising of the multimedia player as a device capable of 
watching  on  a  television  screen  audiovisual  material  illegally  available  on  the  internet 
demonstrated that the accused was aware that his product helped users to access works available 
on  the internet without the consent of  rights holders. In addition, no  doubts existed that the 
multimedia player was  provided  to  make  a  profit.  As  a  result, the  accused  communicated 
copyright- protected works to a new public through his multimedia player. 

Perhaps the same question would have been answered differently by the Court, were the accused 
not have pre-installed in his multimedia players new functionalities that made it easier for the 
users to access those works. Such questions emphasise the need for each case to be looked at 
individually and answered in light of the existing guidance provided of the CJEU. 

National approaches to the use of pre-loaded multimedia streaming devices 

The use of set-top boxes in copyright infringements is a relatively novel issue for national courts, 
which  means  that  case-law  in  this  area  remains  scarce.  An  uptake  in  investigations  and 
prosecutions in  this area will naturally result in  an increase of  national judgements that will 
enable a  better understanding of  how  courts  interpret the issue of  unlawful exploitation of 
protected works through the use of these multimedia devices. 

Nevertheless, existing court practice in this area can help to provide an indication of how other 
courts may respond to future cases. Courts in a number of countries, including Denmark, Spain 
and Sweden, have had the opportunity to address this issue in recent years. The judgements show 
an overall tendency to treat the sale and distribution of set-top boxes loaded with infringing apps 
and  add-ons  that  facilitate  the  unauthorised  access  to  copyright-protected  content  as  a 
sufficiently serious offence that can warrant a custodial sentence. 

The cases dealt with by national courts mostly relate to  resellers of illegal 
IPTV  packages –  individuals  who  buy  the  set-top  boxes,  install  the 
necessary apps to  enable the access to  the infringing content and sell 
them to  the  final  consumers  who  are  able  to  access  a  plethora of 
domestic and foreign  channels in  exchange for  the payment of  a 
subscription. Prices for the service tend to vary, depending on the 
duration  of  the  subscription  and  the  catalogue  of  channels 
purchased. 

Figure 6. Basic overview of an IPTV 
service structure 

Resellers rely  on  others  for  the  provision  of  the  IPTV  playlists 
needed to stream the content and the authorisation to act as a reseller. In this way, they operate  
at the bottom of what is often a pyramid structure involving several actors that perform different 
roles –  individuals that hack and re-encode the signal, administer user panels and manage the 
relationship with resellers or provide user support. Nevertheless, the (limited) case-law so far 
available in this area shows that resellers can be convicted for direct infringement of the right of 
communication and making available to the public even if they do not have entire control of the 
illegal IPTV operation (for examples, see Cases 4 and 5). 

25 

 
 
While every conviction represents an important step towards the successful disruption of  an 
illegal service, resellers represent the lower level of the illegal IPTV structure. Investigations and 
prosecutions of IPTV cases should therefore include a follow the content approach in order to 
find,  prosecute and  convict  other enabling actors  that make  the proliferation of  illegal IPTV 
services possible. 

IPTV is a particularly complex area for many investigators, prosecutors and judges, as it sits at 
the intersection between technology and cyber-related issues. The lack of understanding of how 
illegal IPTV  services function  and  key  concepts  within  intellectual property crime can  pose 
obstacles to the success of prosecutions and convictions. National legislation permitting, national 
authorities should consider enlisting the support of rightholders who can provide expertise and 
play a pivotal role in inspecting and testing the devices, making test purchase s and helping to 
identify the content accessed via the set-top boxes. 

Case 4 – Denmark  

Case 5 – Spain  

Court of Esbjerg (99-2036/2021) 

Zamora Court of Appeal (00014/2022) 

The defendant in this case operated two websites 
through which he marketed an IPTV service that 
offered  access 
illegally 
retransmitted foreign and Danish channels.  

thousands  of 

to 

The channels were  accessed through  a  set-top 
box that the defendant pre-configured and sold 
to customers, but the TV signals were re-encoded 
and transmitted by another party.  

The defendant  was not  in charge  of  the  entire 
IPTV operation, but  worked as a  reseller after 
obtaining  authorisation  from  the  organisation 
that retransmitted the TV signals. 

Nevertheless, the court found that the actions of 
the  defendant  in  making  copyright-protected 
works  available  to  the  public  without  the 
authorisation of  the  rightholders constituted a 
particularly  serious  offence  under  article 
299b(1) of the Danish Penal Code.  

Unlike  the  defendants  in  Case 5  however,  the 
defendant  in  this  case  was  given  a  5-month 
suspended prison sentence and ordered to carry 
out 100 hours of community service. The court 
further ordered the confiscation of the proceeds 
of  the  crime  in  the  amount  of  DKK 150 000 
(approximately EUR 20 155). 

This case concerned eight defendants that were 
convicted  for  a  crime  against 
intellectual 
property (art. 270(1) CC) in conjunction with the 
crime of facilitating access to a radio or television 
broadcast service (art. 286 CC).  

of 

structure 

The operation of this illegal service resembled a 
pyramid 
operators  who 
simultaneously  acted  as  buyers  and  sellers. 
Accordingly, defendant 1 acted as the head of the 
pyramid and was at the origin of the distribution 
of  the  illegal content,  providing  M3U  lists  to 
defendant  2  in  exchange  for money payments. 
The latter  created a resale system whereby the 
remaining  defendants  (resellers)  bought  the 
M3U lists from him and resold them to the final 
users  by  way  of  periodic  subscriptions, thus 
creating 
their  own  commercial  structure. 
Defendant 2 also provided set-top boxes with a 
pre-installed app for  the visualisation of illegal 
content  for  the  amount  of  EUR 112.  The 
subscriptions  were 
available  at  prices 
substantially lower than those offered  by legal 
providers. 

All the defendants were convicted for their direct 
involvement in the  infringement of  copyrights 
and  all  pleaded  guilty.  In  light  of  the  special 
gravity of  the  crimes, reflected in the  damage 
(around 
caused 
EUR 1 216 460), all the defendants were handed 
prison sentences ranging from 9 to 23 months. 

rightholders 

the 

to 

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26 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
C. Unauthorised file-sharing and torrent 
websites 
File sharing has been around for some time and has 
become  a  widespread  practice  among  internet 
users to exchange online content and information. 
This  type  of  technology  allows users  to  transfer 
content  among  each  other  using  a  network  or 
internet connection.  

Copyright  piracy  through  online  file  sharing  is 
often  perpetrated  by  users  who  upload  and 
disseminate copyright-protected  content  through 
available  file-  sharing  services.  In  some  MS 
however,  this  type  of  conduct  may  not  be 
criminalised,  as  it  falls  short  of  the  minimum 
requirements  for  criminalisation.  For  example, 
some MS require that the infringement be carried 
out for profit or on a commercial scale (see element 
3),  but  many  users  who  infringe  copyrights 
through file sharing (including on a large scale), do 
so without the intent to make money. 

Overall, the deployment of criminal law as a tool to 
enforce  copyrights  against  individual  users  of 
illegal sharing services tends to be rare. Instead, its 
use is reserved for prolific infringers – those who 
download  or  upload  large volumes  of  protected 
materials (50). 

In some MS however, prosecutors have found legal 
pathways to  enforce copyrights in the context  of 
unauthorised file sharing through criminal law, by 
targeting  those  that  support  or  incentivise  the 
primary  offence.  The  Pirate  Bay  and  Finreactor 
cases  (Cases 6  and  7)  are  possibly  the  most 
prominent examples of  case-law where national 
criminal courts have extended the legal doctrine of 
criminal liability to find the operators of  the file-
sharing services liable for the infringement. 

In  both  cases, the  courts  took  the  view  that the 
services  offered  by  the  defendants  played  an 
instrumental  role  in  facilitating  the  principal 
offence  of  copyright 
the 
functionalities  offered  by  these  services  were 
pivotal to the distribution of illegal content. 

infringement,  as 

Case 6 – Sweden  

Stockholm District Court (B 13301-06) 

The  defendants were  operators  of  the  Pirate 
Bay  website,  which  provided  a  peer-to-peer 
file-sharing  service  based  on  BitTorrent 
technology  that  enabled  users  to  locate  and 
share  copies  of  copyrighted  works  amongst 
themselves.  The  function  of  the  BitTorrent 
tracker was limited to intermediating between 
users  and did  not  host  any  type  of  protected 
content.  

According  to  the  court,  the  website  and  its 
functionalities  allowed  users  to  commit  the 
principal offence of breach of the Copyright Act. 
By  providing  a  website with  advanced search 
functions,  easy  uploading  and  downloading 
features,  and  putting  file  sharers  in  contact 
through the torrent tracker, the operation run 
via  the  Pirate  Bay  website  aided and  abetted 
the main copyright offences. 

Given their level of participation in the running 
and  technical  operation  of  the  service  and 
knowledge  of  each  other’s  involvement  and 
role,  the  defendants were responsible for  the 
organisation,  administration,  programming, 
financing  and  operation  of  the  file-sharing 
service. Their actions  constituted collaborative 
work  with  the common aim to  further expand 
the technical and business sides of Pirate Bay. 
Accordingly,  the defendants were jointly liable 
for  aiding  and  abetting 
the  copyright 
infringements.  

at 

generated 

defendants 

As  the  website  was  financed by  advertising – 
least 
the 
SEK 1 200 000  (approximately  EUR 128 000) 
in advertising space – the court concluded that 
the offence took place within the framework of 
a  commercial  activity.  The  duration  and 
substantial extent of the infringement, number 
of  works  made  public,  and  damage  caused 
carried particular weight during sentencing. As 
a  result,  each  defendant was  sentenced to  1-
year imprisonment. 

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(50)  Rights  Alliance  (2022),  ‘Suspended sentence  for  illegal  downloading and  sharing  of  films,  series,  music,  and  books’, 
https://rettighedsalliancen.com/suspended-sentence-for-illegal-downloading-and-sharing-of-films-series-

29 November, 
music-and-books/. 

27 

 
 
                                                             
 
 
 
 
  
 
 
 
 
 
 
 
 
These two  cases provide an  interesting angle for 
prosecution for  a  number of  reasons. Firstly, the 
defendants  in  Pirate  Bay  and  Finreactor  were 
convicted on the basis that the services that they 
operated  (which  could  also  be  used  to  share 
legitimate  files)  were 
indispensable  for  the 
execution of the infringing acts perpetrated by the 
users, in spite of these services not storing any type 
of copyright-protected material. 

Secondly, in the two cases, the prosecution framed 
the  role  of  the  file-sharing  services’  operators 
differently. In Pirate Bay, the prosecutor relied on 
provisions  on  contributory liability. Accordingly, 
while the users of Pirate Bay were considered the 
main offenders,  the  defendants in the  case –  the 
administrators of the Pirate Bay service – were still 
convicted as accomplices to the primary offence. On 
the other hand, in the Finreactor case, the Supreme 
Court  in  Finland  did  not  base  its  ruling  on 
provisions  of  aiding  and  abetting,  but  instead 
convicted the administrators as main authors of the 
crime, alongside the users of the service. According 
to the Court, the joint conduct of the operators and 
users of Finreactor enabled the infringements on a 
large scale. 

The  type  and  level  of  sanctions  have  also 
contributed to  setting  these  two  cases  apart.  In 
Pirate Bay, all the defendants were sentenced to a 
one-year imprisonment for  the act  of  aiding and 
abetting – not for committing the primary offence 
of  copyright infringement (51). To  this day, Pirate 
Bay  remains  one  of  the  cases  with  the  highest 
penalties for aiding and abetting an infringement of 
copyrights. 

In Finreactor, the defendants did not receive prison 
sentences, but the culpable nature of their actions 
was  reflected  in  the  high  amount  of  damages 
established (EUR 680 000).  

The  two  cases  presented are rather  unique, not 
only due to the way the prosecution argued their 
case and  the courts interpreted  the law, but also 
judgements. 
because  of  the  outcome  of  the 
Arguably,  the  prison  sentence  given  to  the 
administrators of the Pirate Bay service in Sweden 
might  be  explained  by  the  need  for  criminal 

Case 7 – Finland 

Supreme  Court (KKO:2010:47) 

Finreactor  was  a  peer-to-peer  filesharing 
network  that  operated  a  BitTorrent  tracker, 
which  provided  users  with  information  (the 
torrent 
for 
downloading and the  users who  owned those 
files.  The network was accessible to the public 
free  of  charge  and  had  around  10 000 
registered users.  

files  available 

file)  about 

Finreactor’s  administrators  (the  defendants) 
were in charge of the technical operation of the 
service and user management.  

The court  argued that the maintenance of the 
service  by  the  defendants  was  a  direct  and 
indispensable  part  of  the  production  and 
distribution  of  the  protected  works,  and 
therefore they had actively participated in the 
infringement.  Coupled  with  the  division  of 
tasks  among  the  administrators  and  the 
service’s  purpose  to  enable  efficient  file 
sharing,  this  meant  that  the  actions  of  the 
administrators had to  be assessed as a  whole. 
The  fact  that  their  direct  involvement  in 
sharing  and  copying  the  works  was  not 
required for  the  technical  implementation  of 
the file-sharing network did not exclude them 
from criminal liability.   

service, 

infringed 

The  court  found that  by jointly  operating  the 
the  defendants  had 
Finreactor 
intentionally 
by 
copyrights 
participating  together,  and  in  collaboration 
with  the  users,  in  the  distribution  and  the 
making  available  to  the  public  of  copies  of 
protected works.   

Seven  of  the  defendants  were  convicted  as 
authors of the primary offence under the Finish 
Copyright  Act,  and  the  remaining  four  were 
found guilty of aiding and abetting. They were, 
additionally,  ordered  to  pay  EUR 680 000  in 
damages to the rightholders. 

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(51)  Recent cases  of file-sharing services have resulted in shorter sentences (sometimes  suspended) and community service (e. g. 

DanishBytes cases). 

28 

 
 
                                                             
 
 
 
 
 
 
 
 
enforcement  systems  to  provide  a  strong  deterrent  that  contributes  to  preventing  and 
responding to infringing acts (as stipulated by article 61 of TRIPS). 

Element 2: Wilfulness 
Wilfulness constitutes the second element required by article 61 of TRIPS for the provision of 
criminal sanctions against copyright infringements. The requirement acts as a qualifier, which 
means that in  its absence the obligation to  institute criminal procedures does not  apply. This 
helps to ensure that cases of infringement carried out in good faith are excluded from criminal 
liability. 

Wilfulness refers to the infringer’s mental state (mens rea), reflected on a voluntary intention to 
commit the infringing act. In  many jurisdictions, prosecutors must prove that the  defendant 
infringed the copyright of another wilfully. 

A corollary to  the provision of  criminal sanctions in cases of  copyright infringement is that a 
higher standard of proof will apply than that which is required in civil proceedings. At its most 
demanding, wilfulness may require the prosecution to prove the infringer ’s knowledge that the 
materials reproduced, shared or distributed are illegal. At its  least demanding, the burden of 
proof may be satisfied if the infringer acted recklessly or negligently. 

Some countries consider wilfulness a very difficult element to prove and therefore apply other 
standards of  mens  rea.  Accordingly, the  subjective element for  copyright piracy is  construed 
differently across EU countries, making it important to identify the applicable requirement within 
each jurisdiction, as it can have implications for evidence collection, the work of the prosecution 
and, in some cases, for sentencing.  

With respect to the legal qualification of the mens rea in MS, two main groups of countries emerge. 

The first and largest group comprises MS where copyright infringements are only criminalised if 
committed with intent. An example is Germany, where the law provides for criminal sanctions 
for the unlawful exploitation of copyrighted works (52) (including the reproduction, distribution 
and communication of a work to the public), unlawful affixing of the designation of authorship (53) 
and infringement of related rights (54). 

Section  15 of  the  German Criminal Code  makes it  clear that 
criminal liability results from intentional acts, unless negligence 
is  expressly  stated  by  the  law.  The  main  provisions  of  the 
German Copyright Act on criminal enforcement are silent with 
regard  to  the  requisite  mens  rea  for  the  criminalisation of 
infringing conduct, leading to the conclusion that  negligence-
based acts of infringement are not subject to criminal liability in 
Germany. These may, however, still be pursued by the victims 
through civil action. 

German Criminal  Code 

provides 

Section  15 –  ‘Unless the  law 
expressly 
for 
criminal liability for negligent 
intentional 
conduct,  only 
conduct  attracts 
criminal 
liability’. 

The  second  group  includes  MS  that  apply  other  standards of  mens  rea  besides wilfulness. 
Accordingly, these countries have loosened the thresholds set by TRIPS for the criminalisation of 
copyright infringements and, consequently, expanded the range of situations to which criminal 
sanctions can be imposed. 

(52) 
(53) 
(54) 

S 106 of the German Act on Copyright and Related Rights. 
S 107 of the German Act on Copyright and Related Rights. 
S 108 of the German Act on Copyright and Related Rights. 

29 

 
 
                                                             
 
Danish Copyright  Act 

76. –(1) Anyone who with intent or by gross 
negligence 

(i) violates section 2 or section 3; 

(ii) violates sections 65, 66, 67, 69, 70 or 71; 

(iii)  violates  section  11(2),  section  60  or 
sections 72–75; 

(iv) fails to  file a  statement or  information 
according to section 38(7); 

to 

the 

(v)  fails  to  register  or  fails  to  disclose 
information 
joint  organisation 
according to section 41(1), section 42(6), and 
the  first sentence of  section 46, or  fails to 
keep and hold accounts according to section 
45; or 

(vi) violates regulations laid down pursuant 
to section 61(2); 

is liable to a fine 

(2) Where an intentional violation of 
the  provisions  mentioned  in  subsection 
(1)(i) and (ii) has been committed by using 
works,  performances  or  productions 
protected  under  sections  65–71  or  by 
distributing copies hereof among the general 
public, 
the  punishment  may  under 
particularly  aggravating  circumstances  be 
increased  to  imprisonment  of  1 year  and 
6 months, unless a more severe punishment 
is provided by section 299b in the penal code 
(…).  

One  such  country  is  Denmark  where,  besides 
wilful  infringements,  acts committed with gross 
negligence (reasonable belief) are also subjected to 
criminal sanctions (55).  

Generally,  however,  acts  committed  by  gross 
negligence, regulated in s 76 of the Copyright Act, 
are punished with a fine. Danish law also provides 
for  harsher  sanctions  for  more  serious  acts 
committed with intent. In  particular, intentional 
violations of  the right of  reproduction or making 
available to  the  public  may  result  in  a  term  of 
imprisonment for  a  period  of  up  to  18 months 
when aggravating circumstances are present (56) 
(serious offence) or, in more severe cases involving 
particularly  aggravating  circumstances,  up  to 
6 years imprisonment, as foreseen in section 299b 
of the Criminal Code (57). 

Aggravating  circumstances  in  the  context  of 
copyright  infringements  are  deemed  to  exist 
where the  offence  is  committed for  commercial 
purposes, a significant number of copies are made 
available or distributed to the public, or the works 
are reproduced in a way that the public can access 
them at a  place and time individually chosen by 
them (58). 

Finland takes a similar approach to Denmark with 
respect  to  mens  rea  requirements,  as  both 
infringements carried out  intentionally and with 
gross negligence attract criminal liability. 

Negligence-based  conducts (59), including, among 
others, violations of copyright, technical measures 
and electronic rights management information, are 
regulated  in  the  Copyright  Act (60)  and  are 
generally punished with a fine.  

On the other hand, the Criminal Code regulates mostly severe infringements, which may result in 
imprisonment and/or a fine. In addition to the existence of other elements (including gain and 
damage to the rightholder) (61), an  essential precondition for criminalisation is that the act is 
intentional. The applicable mens  rea  for  the  copyright offence  and  other related offences  is 
derived from section 5 of the Criminal Code. 

S 76 of the Danish Copyright Act. 
S 76 (2) of the Danish Copyright Act. 
S 299b(1) of the Danish Criminal Code. 
S 76(2) of the Danish Copyright Act. 

(55) 
(56) 
(57) 
(58) 
(59)  The  same  conducts,  if  carried  out  with intent,  will  be  punished in the  same  way,  unless  they  constitute  a  more  severe 

infringement regulated in section 1 of chapter 49 of the Criminal Code. 
(60) 
S 56a–56f of the Finnish Copyright Act. 
(61)  Chapter 49, s1 of the Finnish Criminal Code. 

30 

 
 
                                                             
 
 
Finnish Criminal  Code 

Section 5 (515/2003) 

Imputability 

is  a 
‘Intent  or  negligence 
prerequisite for criminal liability. 

National approaches to the element of wilfulness in copyright 
infringements are nuanced at  the EU  level. Some  MS  have 
loosened the requirements set in TRIPS by introducing lower 
(negligence-based)  standards  of  mens 
the 
criminalisation of  certain  infringing  acts,  whereas  others 
have maintained wilfulness as the only standard applicable 
for the imposition of criminal penalties.  

rea 

for 

Unless otherwise provided, an act 
referred  to  in  this  Code  is only 
punishable when intentional. 

What is provided in subsection 2, 
also applies to an act referred to 
elsewhere in law for which most 
severe  punishment provided by 
law  is  imprisonment  for  more 
than  6 months  or  concerning 
which  the  penal  provision  has 
been 
this  Code 
issued  after 
entered into force’. 

Copyright infringement notices are a commonly used tool to 
alert infringers to the illegality of their conduct – a practice 
that  can  be  relied  upon  by  rightholders  in  IP  disputes. 
However, their use may  not  be  feasible in  all  instances of 
criminal  copyright  infringement  (e.g.  large-scale  piracy 
perpetrated by organised criminal groups). In such cases, the 
existence 
of 
commercial scale could 
in  principle  help  to 
establish 
wilfulness (62),  but  in 
jurisdictions 
where 
commercial scale is not 
an  element of  the crime, proving  wilfulness might prove 
more  challenging.  Moreover,  the  way  courts  determine 
wilfulness or  negligence in  copyright infringement cases 
may  differ  and  is  not  always  straightforward.  When 
combined,  these  factors  highlight  the  importance  for 
prosecutors to present a combination of evidence at court 
to help strengthen the case and successfully prove criminal 
intent. 

Scan the QR code above to consult 
the IPC Project’s flyer on copyright 
infringement notices. 

Would you like to know more about 
infringement notices? 

Element 3: Commercial scale 
Commercial scale is the third requirement set by article 61 of TRIPS for the criminalisation of 
copyright infringements. In line with this provision, the national laws of TRIPS member countries 
should foresee criminal procedures and penalties including imprisonment and/or fines for wi lful 
acts of copyright piracy carried out on a commercial scale. 

Similarly to the element of wilfulness, commercial scale acts as a qualifier, meaning that wilful 
acts of  copyright piracy are not subject to the obligation set out in article 61 if the commercial 
scale criterion is not present (63). 

TRIPS is silent as to what constitutes commercial scale, possibly to give member countries the 
discretion to define this criterion in line with their national realities. However, a few attempts 
were made at defining it. 

The final text of the Anti-Counterfeiting Trade Agreement (ACTA) – a multilateral treaty designed 
to strengthen the legal framework for the enforcement of IP rights (64) – defines this concept as 

(62)  Haber, E. (2018), Criminal Copyright, Cambridge University Press, Cambridge, p. 239. 
(63)  World Trade Organization (2009), ‘China – Measures affecting the protection and enforcement of intellectual property rights’, 

p. 106, https://www.wto.org/english/news_e/news09_e/362r_e.htm. 

(64)  The members of ACTA currently include Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea and the United 

31 

 
 
 
                                                             
 
 
 
 
 
 
‘acts  carried  out  as  commercial  activities  for  direct  or  indirect  economic  or  commercial 
advantage’ (65). Some commentators have taken the view that the definition of commercial scale 
provided in  ACTA remains somewhat unclear due to  the ambiguous nature of  the concept of 
indirect commercial advantage (66). 

In 2009, a WTO  report addressed the concept, providing a somewhat vague interpretation of 
commercial scale. It provided that commercial scale ‘is the magnitude or extent of typical or usual 
commercial activity’ and that piracy on  a commercial scale refers to  ‘piracy carried on  at the 
magnitude or extent of typical or usual commercial activity with respect to a given product in a 
given market’. Thus, piracy on a commercial scale can vary, and is dependent on the extent that 
is common for  a  given product in a specific market, which can be small or  large (67). Such an 
interpretation alludes to the circumstantial nature of the concept of  commercial scale and the 
importance of  national realities of  commerce, which may  differ  across  countries and reflect 
different factors, not least the consumer base and patterns of consumption. 

Furthermore, the interpretation of  the  panel  highlighted the relevance of  financial  gain  for 
commercial scale, highlighting that  ‘the magnitude or  extent of  typical or  usual commercial 
activity relates, in the longer term, to profitability’ (68). 

Acknowledging the importance of technological developments and the adaptation of commerce 
practices to them, the panel further asserted that the term ‘commercial’ takes a neutral approach 
to technology, which means that commercial scale ‘can apply to various forms of commerce, and 
therefore, various means of infringement’ (69). Thus, commercial scale is a flexible element that 
follows trends in online and offline infringements and adjusts itself to changes in ‘magnitude or 
extent’ and ‘degree or proportion’ (70). 

The  lack  of  a  definition of  commercial scale at  the international level and  the interpretation 
offered by the WTO  leave considerable discretion to national legislators to set thresholds for 
criminal liability based on products and markets. At the EU level, however, the approach to the 
interpretation of commercial scale is comparable, as no common definition exists in MS’ national 
legislation. Consequently, national courts remain the final arbiters in this matter. 

In the context of IP infringements, commercial scale is used as an umbrella term that encompasses 
various national criteria with an inherent economic, business or profit orientation.  

As regards the role of commercial scale in national legislation, national approaches tend to vary 
significantly across the EU. With a few exceptions, MS largely fall into three main groups based 
on how they approach this element in national law. These include MS that make commercial scale 
(or the equivalent national variation of this element) a necessary pre-condition for the existence 
of  a crime of  copyright piracy; MS  where commercial scale  is  not  considered an  aggravating 
circumstance in  the  crime;  and  countries  where  the  concept  does  not  exist  in  national  IP 
legislation. 

States.  The EU  participated in the negotiations but  did not sign the final text of the treaty and is therefore not bound by i ts 
provisions. This means that the definition of commercial scale provided in ACTA is not applicable within the EU-27. 

(65)  Anti-Counterfeiting 

Trade 
https://www.mofa.go.jp/policy/economy/i_property/pdfs/acta1105_en.pdf. 

Agreement, 

art. 

23 

(2011). 

(66)  Geiger, C. (2014), ‘Challenges for the Enforcement of Copyright in the Online World: Time for a New Approach ’, in Torremans, 
P. (ed.), ‘Research Handbook on the Cross-Border  Enforcement of Intellectual Property’,  Max Planck Institute for  Innovation 
and Competition’, No 14-01, p. 13, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2382603. 

(67)  World Trade Organization (2009), ‘China – Measures affecting the protection and enforcement of intellectual property rights’, 

p. 115, https://www.wto.org/english/news_e/news09_e/362r_e.htm. 
Ibid, p. 116. 
Ibid, p. 130. 
Ibid. 

(68) 
(69) 
(70) 

32 

 
 
                                                             
An example of a MS in the first group is Lithuania,  where the law foresees criminal sanctions for 
the  illegal  use  of  a  literary,  scientific  or  artistic  work  or  parts  thereof  for  commercial 
purposes (71). To help determine the existence of this element, the national law draws on the use 
of thresholds. These relate to the total value of the illicit copies vis-à-vis the price of legal copies 
or the originals of the reproduced copies. These values are expressed in minimum salary levels, 
which in 2023 stand at EUR 49 (72).  Accordingly, national provisions concerning the unlawful 
reproduction, distribution, transportation or storage of a copyright-protected work or an object 
of a related right, provide for various criminal sanctions (community service, fine, restriction of 
liberty, arrest or imprisonment) where the total value of the illegal copies exceeds 100 minimum 
salary levels (73) (EUR 4 900). Violations that fail to meet these economic thresholds will thus not 
attract criminal liability, but could still be subject to administrative liability.  

Similarly, in Slovenia, the national provisions regulating copyright violations allude to the total 
market  value of  the  copies  of  copyrighted works,  and  of  performances, phonograms, video 
recordings, broadcasts and databases. This helps to determine the length of the sentence, which 
can go up to 3 years if the market value of the copies is high or 5 years if the market value is very 
high (74).  The question remains as to  what constitutes a high or  very high market value . Since 
these criteria are not defined in national law, the answer is left for national courts to decide on. 

The adoption of thresholds in national laws, while limited to a few MS, likely reflects an intention 
by national legislators to only criminalise more severe infringements where the profit gained by 
the infringer or the potential loss to the rightholder is greater, and thus leave outside the scope 
of criminal sanctions situations where the outcome of the infringement is considered less serious 
and may be best addressed via the civil route. Nevertheless, advances in technology and online 
advertising, which have provided infringers with new opportunities to generate very large profit, 
means that most cases of online piracy will likely reach these national thresholds. 

In Spain,  the element of commercial scale is encapsulated by the requirement of financial gain – 
intrinsically linked to  the (subjective) element of wilfulness. The 2015 reform of  the Spanish 
Criminal Code has helped to bring some clarity to this element by establishing both direct and 
indirect financial gain as an element of the basic offence foreseen in article 270. By introducing 
both the direct and indirect nature of the profit, the reform has not only minimised the potential 
for  discrepancies in jurisprudence (75), but  also  ensured a  wider scope  of  application of  the 
criminal law to situations where the profit is generated by other means not directly linked to the 
infringing conduct (e.g. revenue from advertising and the sale of piracy site users’ data to third 
parties), and by entities that may not pursue strictly economic interests (76). 

In practice, the element of financial gain should be interpreted in the strict sense of commercial 
profit. This is because the protection of IP rights through criminal law should be reserved for the 
most severe instances of infringement, leaving cases directed at non-commercial advantage or 
benefit to the civil courts. In this way, criminal sanctions for copyright infringements in Spain will 
apply  to  infringers  whose  actions  are  carried  out  with  a  commercial  gain  motive –  to  be 
understood as  the intention to  obtain an  economic return, profit or  income  –  excluding from 
criminal liability those whose infringing activities are not aimed at generating a profit, even if 

Art. 192 of the Lithuanian Criminal Code. 

(71) 
(72)  Decision on the resolution of the Government of the Republic of Lithuania of 2014 5 No. 1206 ‘on the approval of the amounts 
https://www.e-

assistance 

reference 

benefits’, 

(2022), 

of 
tar.lt/portal/lt/legalAct/08b004f07c7311ed82a7ae4cb6b10027 . 

indicators 

social 

for 

(73)  Art. 192 of the Lithuanian Criminal Code. 
(74)  Art. 148 and art. 149 of the Slovenian Criminal Code. 
(75)  Circular 8/2015 of 21 December on intellectual property crimes committed through information society services following the 

reform implemented by Organic law 1/2015 (2015), https://www.boe.es/buscar/doc.php?id=FIS-C-2015-00008. 

(76)  Ecija (15 February 2019), El ánimo de lucro en la defensa penal de los derechos de autor, https://ecija.com/el-animo-de-lucro-

en-la-defensa-penal-de-los-derechos-de-autor/. 

33 

 
 
                                                             
causing harm to  copyright owners. In the latter scenario, cases will be addressed in the civil 
courts. This interpretation of commercial profit brings Spanish national legislation in line with 
EU, which defines acts carried out on a commercial scale as those ‘carried out for direct or indirect 
economic  or  commercial advantage’ (77),  and with international norms such  as  the Budapest 
Convention (78). 

Denmark  is an example of MS in the second group – countries where commercial scale is not a 
necessary  requirement for  the  criminalisation of  copyright  infringements, but its  existence 
triggers  a  higher  penalty.  Under  Danish  law,  commercial  scale  constitutes  an  aggravating 
circumstance, which results in the imposition of heavier criminal sanctions for certain types of 
copyright infringements. This is the case, for example, of intentional violations of the exclusive 
right of reproduction and making available to the public that have a commercial nature, which 
may be sanctioned with a term of imprisonment of 1.5 years (as opposed to a fine if the activity 
is not commercial) (79). In the most serious cases of extremely aggravating circumstances, a more 
severe punishment – up to 6 years imprisonment – is prescribed by the Criminal Code (80). 

The same approach has been taken by legislators in Germany, where violations of infringements 
conducted on a  commercial basis attract more severe penalties (81). Accordingly, the unlawful 
reproduction, distribution or communication to the public of  a copyright -protected work (82), 
unlawful  affixing  of  designation  of  authorship (83)  or  infringement  of  related  rights (84) 
committed on a commercial basis carries a term of imprisonment of up to 5 years or a fine, instead 
of 3 years (foreseen for the basic offences). 

The  third group includes  MS  where the concept  of  commercial scale is  absent from  national 
legislation. This means that certain acts of copyright infringement are criminalised regardless of 
whether they are committed as part of a commercial activity or to generate profit. A case in point 
is Portugal, where the crime of copyright piracy occurs when there is an unauthorised use of an 
author’s exclusive rights in any of the ways foreseen in national law (85), irrespective of whether 
the infringer intended to obtain an economic advantage, as reflected in the case -law of national 
courts (86). The same approach has been taken in Sweden, where the criminalisation of copyright 
piracy is based solely on the commission of the infringing act (committed intentionally or with 
gross negligence) (87). Similarly to Denmark, Swedish national law distinguishes between less 
serious and more serious copyright violations. The latter can be determined with reference to a 
number of factors (88), none of which concern the commercial nature of the offence or the intent 
to generate gain or profit. 

(77)  Directive  2004/48/EC of the European Parliament and of  the  Council of  29  April 2004 on the  enforcement  of  intellectual 
https://eur-lex.europa.eu/legal-

30.4.2004, 

pp. 16–25, 

14, 

OJ 

property 
content/EN/TXT/?uri=CELEX %3A32004L0048R %2801 %29. 

preamble 

L 157, 

rights, 

Section 76(2) of the Danish Act on Copyright. 
Section 299b of the Danish Criminal Code. 
Section 108a of the German Act on Copyright and Related Rights. 
Section 106 of the German Act on Copyright and Related Rights. 
Section 107 of the German Act on Copyright and Related Rights. 
Section 108 of the German Act on Copyright and Related Rights. 

(78)  Article 10 of the Budapest Convention, https://www.coe.int/en/web/cybercrime/the-budapest-convention. 
(79) 
(80) 
(81) 
(82) 
(83) 
(84) 
(85)  Articles 195, 196, 198 and 199 of the Portuguese Act on Copyright and Related Rights. 
of 
(86)  Court 

Coimbra, 

Appeal 

case 

no. 

of 

(2011), 
http://www.dgsi.pt/jtrc.nsf/c3fb530030ea1c61802568d9005cd5bb/a67b13b71f10a3828025786c0049150c?OpenDocumen
t. 

1788/04.5JFLSB.C1 

(87)  Article 53 of the Swedish Copyright Act. 
(88) 

In line with art. 53 of the Swedish Copyright Act, these factors include that the infringing act (1) has been preceded by particular 
planning, (2) was part of criminal activities  conducted in an organised form,  (3) was conducted on a large scale, or  (4) was 
otherwise of a particularly dangerous nature. 

34 

 
 
                                                             
Finally, a few MS  do  not fall  specifically under one 
particular group, but instead combine aspects of the 
three groups. A MS that represents this approach is 
Poland,  where  legislators  have  given  commercial 
scale a  double role  as an  essential element and an 
aggravating circumstance. Specifically, certain acts – 
including  the  infringement of  the  author’s  moral 
rights (89)  and the   acquisition or  assistance in  the 
disposal  or  concealment  of  an  object  carrying  a 
protected  work,  performance,  phonogram  or 
videogram (90) – must be carried out   h  the aim to 
obtain a financial or economic benefit in order to be 
criminally sanctioned. In other cases –  for  example 
fixation,  reproduction or  dissemination of  works, 
performances,  phonograms,  videograms  and 
broadcasts –  the  conduct  of  the  infringer  may  be 
criminalised without the existence of a profit motive, 
although the same acts, carried out with the intent to 
profit,  are  met  with  higher  sentences (91).  This 
approach places Poland at the intersection of the first 
and the second group of countries. 

The Polish Copyright Act makes a further distinction 
between cases where the offence  is  undertaken to 
obtain  economic  benefits  and  those  where  it  is 
carried out as a regular source of income. With this 
approach, the  Polish  law  points  to  a  more  ample 
interpretation  of  this  third  element  of  copyright 
piracy, which seems to  allow for  the  attribution of 
criminal  liability  to  those  who  commit  one-off 
infringements with a view to generating some profit, 
and to recurrent offenders. 

Finally, in a few circumscribed acts, the profit aspect 
is  neither a  required element nor  an  aggravating 
circumstance. These acts include, but are not limited 
to, 
the 
the  usurpation  of  authorship  and 
dissemination of  works  (or  their  derivatives) and 
performances  without  the  identification  of  the 
author (92).  Such  conducts  can  make  an  infringer 
criminally liable in Poland, irrespective of profit. 

As  is  possible  to  infer  from  the  above,  national 
legislative approaches to  commercial scale  are not 
uniform across MS. Moreover, in groups of countries 
where the law treats this element in a similar way, 
the level of sentencing often tends to differ.  

(89)  Art. 115(3) of the Polish Act on Copyrights and Related Rights. 
(90)  Art. 118 of the Polish Act on Copyrights and Related Rights. 
(91)  Art. 116 and 117 of the Polish Act on Copyrights and Related Rights. 
(92)  Art. 115(1) and (2) of the Polish Act on Copyrights and Related Rights. 

Case 8 – Estonia 

Supreme  Court (3-1-1-112-12) 

The defendant wanted to create an  internet 
casino  with  his  partner.  Following 
the 
breakdown of their professional relationship, 
the  defendant  took  possession  of 
files 
internet  casino  and 
relating 
discovered  that  several  of  them  contained 
online  casino  software  whose  copyright 
belonged to company P. 

their 

to 

The  defendant  contacted  company  P  and 
demanded compensation to make up for the 
expenses incurred in the development of his 
business model (which had in the meantime 
become unusable) in exchange for the return 
of their software.  

The  first  instance  court  ruled  that  by  not 
immediately  deleting  the  software  after 
discovering  it  belonged to  P,  the  defendant 
was  in  illegal  possession  of  a  computer 
program 
for  commercial  purposes  and 
sentenced  him  to  a  6-month  suspended 
prison  sentence,  a  decision  upheld  by  the 
second instance court. 

in  criminal 

the  Supreme  Court,  the 
On  appeal  to 
defendant  was 
acquitted.  The  Court 
highlighted that  the  concept  of  commercial 
scale 
law  should  not  be 
interpreted broadly, as done in the previous 
instances,  and  indicated  that  this  concept 
includes  only  activities  carried out  with  the 
purpose of  receiving  a  financial benefit in  a 
systematic or repetitive way.  

With this interpretation, the Court effectively 
ruled  out  one-time  copyright  violations 
where 
infringers  nevertheless  generate 
revenue. 

SCAN TO 
ACCESS 
JUDGMENT 

35 

 
 
                                                             
 
 
 
 
  
 
 
 
 
 
 
 
 
Case 9 – Germany   

Frankenthal  Regional  Court  
(6 O 325/08) 

The  applicant,  who  develops  and  markets 
computer  and  video  games,  requested  an 
internet  service  provider  for  information  on 
the  users  behind  IP  addresses  involved  in 
making  files  with  a  copyrighted  computer 
game  program  available  to  other  internet 
users  on  a  commercial  scale  through  a  file-
sharing program. He argued that as the owner 
of the exclusive rights of exploitation over the 
computer  game  program,  he  is  entitled  to 
information  on  the  users  of  the  infringing 
services  on  the basis of  section  101(9) of the 
Act on Copyright and Related Rights.  

The court denied the request on the basis that 
the provision  of  copyrighted works  could not 
be  considered  to  be  done  on  a  commercial 
basis.  The court supported its decision on the 
fact that the requirements for the existence of 
commercial scale (regularity or permanence of 
the trade, intention to make a profit, externally 
obvious  participation in  gainful employment) 
could not be inferred from making a single file 
available.  Despite  recently  placed  on  the 
market, the retail price of the game – EUR 25 – 
convinced the court that the action of the users 
behind the  IP  addresses did  not  constitute  a 
that 
particularly 
indicated  commercial  activity  on  the  part  of 
the infringers.  

infringement 

serious 

The court further noted that the legislator  did 
not intend for the provision of a single file with 
copyrighted  material  on  internet  file-sharing 
networks to  be regarded as commercial scale. 
This, it said, highlights the view of the German 
Parliament  that  most  participants  in  file-
sharing networks do not participate in gainful 
employment. 

SCAN TO 
ACCESS 
JUDGMENT 

In principle, commercial scale should be limited to 
for-profit activities on a large scale, but in practice 
it  could  also 
include  small-scale  activities 
undertaken by a single person with little financial 
in  deciding  what  constitutes 
return.  Thus, 
commercial  scale,  courts  are  still  the  final 
arbiters. 

In  some  MS,  national  courts  have  had  the 
opportunity  to  provide  an  interpretation  of 
commercial scale. 

In Estonia, where the Supreme Court addressed 
the meaning of the concept in  criminal law (see 
Case 8), commercial scale presupposes a certain 
the 
level  of  repetition  and  consistency  of 
infringing  activity.  According  to  the  Court, 
commercial  scale  in  criminal  law  should  be 
interpreted more strictly to  include  only  those 
activities  carried  out  with  the  purpose  of 
generating a financial benefit in a  systematic or 
repetitive way. 

In Germany, several courts have also provided an 
interpretation  of  commercial  scale,  sometimes 
arriving at disparate conclusions with regards to 
its scope in copyright infringement cases. 

For example, in a 2008 case of  infringement via 
file-sharing  networks,  the  regional  court  of 
Frankenthal noted that, as  a  concept  rooted  in 
commercial law,  commercial scale  in  copyright 
law  refers  to  activities  that  are  planned, 
independent and permanent, carried out with the 
intention  to  make  a  profit  and  externally 
recognisable in at least one market (see Case 9). 
In  the  same year,  the  local  court  of  Darmstadt 
came  to  a  different  conclusion,  taking  the 
interpretation of  commercial scale  in  copyright 
infringements over file-sharing networks a  step 
further. In  its  view,  commercial scale  does  not 
necessarily have to be directed at money but may 
relate to other pecuniary advantages such as the 
downloading of sought-after works – an essential 
feature in  file-sharing networks without  which 
users would have to pay to access the works. 

The court anchored its interpretation on EU law, 
in  particular the  enforcement  directive,  which 
defines infringements on a  commercial scale  as 

36 

 
 
 
 
 
those ‘carried out for direct or indirect economic or commercial advantage’ (93). In doing so, it 
argued that restricting commercial scale to its commercial law definition of  activities that are 
permanent and profit-oriented would fall short of achieving the   effective copyright protection 
required under EU law, particularly in the context of internet file-sharing networks where such 
criteria may never be fulfilled. In its decision, the court further highlighted the importance for the 
infringing copies to amount to a considerable number, and the duration of the file-sharing session 
to be of a considerable length, pointing out that the provision of 620 audio files over a file-sharing 
session lasting several hours constituted commercial scale (94). 

Turning to a more ample definition of commercial scale, the Schleswig regional court ruled in a 
2010 case that any infringement aimed at a direct or indirect economic or commercial advantage 
has a commercial dimension. Accordingly, the court took the view that an intention to profit or a 
certain level of  regularity or  duration of  the infringing activity are  not  requirements for  an 
infringement to be deemed to occur on a commercial scale. With this ruling, the court effectively 
offered a much broader interpretation of the element of commercial scale, which encompasses a 
wider  spectrum  of  situations.  These  could  include  infringing  activities  that  have  a  more 
permanent or recurrent nature, and where profit is generated directly from them, or those where 
the infringement is temporary (including one-off infringements) and the revenue originates from 
an indirect parallel activity (i.e. advertising). 

(93)  Directive 2004/48/EC of the European Parliament and of the Council of 29  April 2004 on the enforcement of intellectual 

property rights, preamble 14, OJ L 157, 30.4.2004, https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX %3A32004L0048R %2801 %29. 

(94)  District Court of Darmstadt, case no. 9 Qs 490/08 (2008), 

https://www.lareda.hessenrecht.hessen.de/bshe/document/LARE190005143 . 

37 

 
 
                                                             
 
How do online pirates  generate  revenue? 

IP crime means big money for criminals and low risk of detection and 
punishment. While some infringers have introduced a subscription-
based system that enables users to view copyright-infringing content 
in exchange for the payment of a daily/monthly/yearly fee – akin to 
legal services – many have resorted to the use of advertisements as a 
form of generating revenue. 

The use  of ads has  become one  of the  most widespread forms of 
monetisation for infringers. This modus operandi involves placing 
ads on pages that  offer illicit content, which users are  shown (e.g. 
through banners, pre-roll videos and pop-up windows) before they 
can  freely  access the  content  on  those  pages.  Fewer  cases have 
involved  the  sale  of  users’  data  to  advertising  companies  or 
redirecting customers of infringing pages to porn sites. To learn more 
about how criminals are feeding off advertising on their illicit pages, 
please refer to the  flyer on ad-funded piracy produced by Eurojust 
and White Bullet, available via the QR code below.  

national 

approaches 
The 
highlighted 
above 
demonstrate  how  MS  have 
used  the  discretion  inherent 
to TRIPS to tailor the elements 
of  the  criminal  offence  of 
copyright  piracy 
their 
national realities, and in  this 
way 
lowered,  loosened  or 
adhered to the thresholds for 
criminal  enforcement  set  by 
article 61 of TRIPS. 

to 

in 

Considerable  differences  in 
legislative and jurisprudential 
the 
and 
practices, 
understanding of the element 
of  commercial  scale,  thus 
prevail,  not  only  between 
different MS,  but also  within 
individual  countries,  where 
different national courts hold 
divergent views and interpret 
the concept in different ways. 

On 
level, 
commercial scale  is  a  central 
element in defining the limits 
IP  enforcement.  This 
of 
element alone contributes to a decision on the level of sentencing and on the legal routes available 
to copyright holders to enforce their rights – whether civil courts, criminal courts or both. 

SCAN TO ACCESS  

legislative 

the 

Despite the lack of uniformity in the assessment of this criterion, it remains clear that some courts 
have been reluctant to find  commercial scale in  one-time copyright infringement cases, even 
where these enable infringers to generate revenue. Many courts take the view that commercial 
scale, with its  inherently business-oriented nature, requires a  certain level of  regularity and 
duration, whereas others argue that commercial scale  exists where any  type of  economic or 
commercial benefit is derived. Ultimately, commercial scale remains a matter for national courts 
to decide upon based on the national legislation, the circumstances of the case and the nature of 
the infringing activity. Its scope and existence will thus continue to be decided on a case-by-case 
basis. 

TRIPS-plus elements in national legislations 
The minimum elements required by the TRIPS agreement for the 
criminalisation of copyright infringements are largely reflected 
in  MS  national  laws,  although  with  some  variations.  Some 
countries, 
including  Estonia  and  Lithuania,  have  fully 
transposed the requirements of  TRIPS into  national law, thus 
making criminal prosecution dependent on the existence of the 
three elements of infringement, wilfulness and commercial scale. 

Figure 7. Overview of elements in Sweden 

38 

 
 
 
Other  MS,  such  as  Denmark,  Cyprus,  the  Netherlands  and  Sweden,  have  slightly  lower 
thresholds,  requiring  at  a  minimum a  combination  of  two  elements  to  institute  criminal 
proceedings against copyright piracy. 

Beyond the minimum requirements established by article 
61 of TRIPS, some MS have chosen to set additional criteria 
for the crime of copyright piracy to their national laws. One 
such  criterion  concerns  the  requirement  that  the 
exploitation  of  a  copyright  be  carried  out  without  the 
authorisation  of  the  rightholders.  Bulgaria,  Germany, 
Spain,  France, Croatia,  Italy,  Portugal and  Slovenia  are 
just some of the countries where national law requires the 
presence of  this element for  the existence of  a  crime of 
copyright  piracy.  The  requirement that  a  copyright  be 
exploited without the consent of  the  rightholders is self-
explanatory, since the  exploitation of  an  exclusive right 
with the authorisation of the copyright holder would not 
amount to  an infringement in the first place. Its intrinsic 
nature may also explain why this element is not explicitly 
set out in the national provisions of some MS laws.  

Figure 8. Overview of elements in Spain 

In a smaller group of countries, including Spain, Hungary, 
Malta and Finland,  the criminalisation of copyright piracy 
further  depends on  the  element of  damage to  another. 
Accordingly,  for  an  act  of  copyright  piracy  to  be 
criminalised in these MS, prosecutors must be able to prove 
that  the  infringement of  a  copyright is  carried out  in  a 
manner  that  causes  harm  (Spain),  loss  or  prejudice 
(Malta) (95)  or  inconvenience or damage (Finland) to  the 
rightholder.  In  Finland  however,  this  element  is  only 
required in relation to the more severe copyright offences 
governed under the criminal code. 

Figure 9. Overview of elements in Hungary 

The way the minimum standards set by TRIPS have been transposed in national laws is quite 
nuanced at  the  EU  level.  Some  MS  have  chosen  to  tighten the  criminalisation of  copyright 
infringements by adding additional elements to the minimum standards established by TRIPS. 
Others have loosened national requirements, for  example by giving commercial scale a  more 
limited role  or  introducing other forms  of  mens  rea,  which has resulted in  a  wider scope  of 
application of criminal measures to infringements. 

The selection of the different elements of the crime of copyright piracy is one of the reasons for 
the  great  diversity  of  criminal  enforcement  approaches  in  the  EU.  However,  the  lack  of 
harmonisation at the EU  level also  finds root  in national differences concerning the sanctions 
regimes applicable to criminal copyright infringements.  

(95)  Art. 298B of the Maltese Criminal Code. 

39 

 
 
 
 
                                                             
Conclusion 

This report looked at the important area of copyright piracy in an attempt to help practitioners 
at the national level make sense of the different approaches to the criminalisation of copyright 
infringements within the EU. 

The analysis herein shows that despite key international and European legi slation, which have 
helped to harmonise key aspects of IP protection and enforcement, significant differences prevail 
in national approaches (e.g. elements of crime, statute of limitations and sentencing, to name a 
few).  This  is  particularly true in  the  branch of  criminal enforcement, which  remains a  MS 
prerogative and a matter of national competence. Hence, the same copyright infringing act will at 
times lead to different results, sanctions and penalties across MS. 

Furthermore, in spite of existing common criteria for the attribution of criminal responsibility in 
many MS, national courts do not necessarily assess the requirements of the crime of copyright 
piracy  uniformly, but  may  give  different  interpretations to  the  same  concept.  A gainst  this 
backdrop, the CJEU  has proved to  be an  important player, assisting national courts with the 
interpretation of  key  aspects of  copyright, and in this way  helping to bring a  certain level of 
harmonisation to case-law in this area. 

The existing disparities between MS national approaches and lack of harmonisation in copyright 
law  has created an  uneven playing field  in  the EU,  which may  result in  legal difficulties for 
international cooperation and pose challenges in cross-border cases of copyright infringement. 
This adds further weight to an area that is by its own very nature complex and difficult to navigate. 

This  complexity results in  part from  the  proximity of  copyright infringements to  the online 
environment and the internet. Advancements in technology have led to the emergence of new 
types of copyright infringements and allowed them to take place at a larger scale and faster rate, 
forcing investigators, prosecutors and judges to operate in a rapidly changing and increasingly 
multifaceted landscape that brings new legal issues and questions. The dynamic nature of piracy 
means that the case-law in this area will continue to evolve, alongside new infringing online (and 
offline) behaviours. 

Going forward, the market for illicit streaming devices such as set-top boxes, file-sharing tools, 
cyberlockers, and the increasing use  of  mobile applications to infringe copyrights is  likely to 
continue. The misuse of  tools based on  artificial intelligence to infringe copyrights, which has 
already begun to emerge, will also provide a new playground for criminals, bringing along a new 
set of cases and complex legal challenges. 

The prevailing perception that IP crime in general – and copyright infringements in particular – 
is a victimless crime, together with lack of understanding, often stands in the way of successful 
prosecutions and convictions. A successful prosecution starts with a well-rounded knowledge of 
IP crime at the national and international levels, alongside an understanding of technology and 
cyber-related issues. This report hopes to have contributed to the first part, by pointing out some 
key similarities and differences that have made the area of copyright law so unique in Europe. 

But despite the difficulties inherent to this area of law, some of the cases illustrated in this report 
show  that well-built  prosecutions can generate good  results and  have a  dissuasive effect  on 
infringers. The outcomes of these cases are important, as they help to recognise the role played 
by  individuals who  may  not  directly infringe  copyrights but  help to  build  the  systems and 
structures that  enable  large-scale infringements and  make  the  illegal  ecosystem  of  digital 
copyright piracy work. 

40 

 
 
Ultimately, IP crime is about money, and while the damage caused by copyright piracy cannot 
always be objectively determined, it is felt particularly acutely by the EU economy. As research 
conducted by the European Union Intellectual Property Office and the Organisation for Economic 
Co-operation and Development has found that, in 2016 losses to the EU economy resulting from 
the importation of  counterfeit and pirated goods  amounted to  EUR 121 billion –  6.8 %  of  EU 
imports (up from 5 % in 2013) (96). This loss represents revenue that could not be re-invested in 
national economies and translates into fewer jobs, less innovation and smaller growth. 

This finding alone speaks to the importance of having a strong criminal enforcement system for 
IP crime in Europe and highlights the need for every investigation and prosecution to focus on  
the revenue streams behind the illicit distribution of copyright-protected material, tracing and 
recovering criminals’ assets, and on building a holistic approach to every cross-border IP crime 
case, aimed at the complete dismantling of the networks behind these crimes. 

The generally low sentencing that is characteristic of cases in this area contributes to giving IP 
crime a low level of priority amid the high number of crime areas that compete for resources at  
the national level. But similarly to other higher priority crime areas, IP crime does not happen in 
isolation, as criminals commit other offences in the process, including fraud and document fraud, 
cyberattacks, money laundering, environmental crime and endangering public health. 

Making the link between IP crime and other crime areas is critical, as it helps to uncover the real 
extent of  a  given case and map the entire ecosystem within which it occurs, while providing 
investigative and judicial authorities with access to a wider range of tools and legislation that can 
be used to collect evidence, build the prosecution case and increase the sentencing to reflect the 
severity of the case. 

Within law enforcement and the judiciary, the response begins with strengthened cooperation, 
continuous education and training and making full use of the support, tools and funding available 
at the EU level to improve methods and responses in this crime area. 

Lastly, in the vast universe of online copyright infringements, rightholders also have a role  to play 
to help root out or minimise instances of copyright infringement and change the perception that 
the unlawful exploitation of copyright is an acceptable behaviour in society. 

Illegal streaming is often  carried out  by  individuals who  wish to  access  content  that is  not 
available in their location. Online streaming service providers charge users in different countries 
the same price for  a  subscription, but the  type of  content made available varies significantly 
across geographical regions. A case in point is the United States, where subscribers can access a 
much larger library of movie and series than customers of the same service can view in Europe. 
This  approach results in  customers  with a  more  limited access to  content resorting to  VPN 
services to  mask  their location in  an attempt to  watch content  that is  not  included in  their 
subscription or available in their region. 

While the use of  VPN services to access content in a different region will not lead to criminal 
liability  for  the  user,  this  example  is  illustrative of  how  current  business  models  in  the 
entertainment industry can desensitise everyday consumers and create the perception that illicit 
streaming is an acceptable alternative of content consumption in cases where paid subscriptions 
do not provide the full catalogue of  material that users wish to access. Over time, this process 
results in  a  change of  mindset  in  the  customer base,  making legitimate customers perceive 
copyright infringement as a normal part of everyday life. 

(96)  OECD/EUIPO (2019), Trends in Trade in Counterfeit and  Pirated Goods, Illicit Trade, OECD Publishing, Paris / European Union 

Intellectual Property Office, https://doi.org/10.1787/g2g9f533-en. 

41 

 
 
                                                             
Ultimately, a large portion of  copyright infringements today that are perpetrated by ordinary 
citizens can only be solved outside the boundaries of criminal jurisprudence. The solution to the 
problem calls for  the commitment of all the actors involved to create a system that is fair for 
rightholders, licensees and consumers. Such an approach not only has the potential to dissuade 
the use of unlawful and harmful practices, but also to ensure that criminal law remains the last 
resort and not the first step in the enforcement of copyrights and other IP rights more generally. 

42 

 
 
 
 
 
 
 
 
 
Annexes 

Annex I 

Schematic on communication to the public (based on the CJEU’s 2-step test) 

Decision chart – Does communication to the public exist?  

Annex II 

Schematic on communication to the public in instances of hyperlinking (CJEU’s Svensson and GS 
Media rulings) 

Decision chart – Does communication to the public exist?  

43 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Eurojust, Johan de Wittlaan 9, 2517 JR The Hague, The Netherlands 
www.eurojust.europa.eu  info@eurojust.europa.eu  +31 70 412 5000 
Follow Eurojust on X, LinkedIn and Youtube @Eurojust 

EN PDF        Catalogue number: QP-05-23-430-EN-N        ISBN: 978-92-9404-164-7        DOI: 10.2812/970700 

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