Stichting Brein v Jack Frederik Wullems.
Date: 2017-04-26
25


Under that provision, authors thus have a right which is preventive in nature and allows them to intervene between possible users of their work and the communication to the public which such users might contemplate making, in order to prohibit such communication (see, to that effect, judgments of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 30, and of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 28 and the case-law cited).
26


As Article 3(1) of Directive 2001/29 does not define the concept of ‘communication to the public’, its meaning and its scope must be determined in light of the objectives pursued by that directive and the context in which the provision being interpreted is set (judgment of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 29 and the case-law cited).
27


In that regard, it should be borne in mind that it follows from recitals 9 and 10 of Directive 2001/29 that the latter’s objective is to establish a high level of protection for authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication to the public. It follows that ‘communication to the public’ must be interpreted broadly, as recital 23 of the directive indeed expressly states (judgments of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 36, and of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 30 and the case-law cited).
28


The Court has also specified that the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, requires an individual assessment (judgment of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 33 and the case-law cited).
29


It is clear from Article 3(1) of Directive 2001/29 that the concept of ‘communication to the public’ includes two cumulative criteria, namely an ‘act of communication’ of a work and the communication of that work to a ‘public’ (judgments of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 37, and of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 32 and the case-law cited).
30


In order to determine whether a user is making a communication to the public within the meaning of Article 3(1) of Directive 2001/29 it is necessary to take into account several complementary criteria, which are not autonomous and are interdependent. Consequently, those criteria must be applied both individually and in their interaction with one another, since they may, in different situations, be present to widely varying degrees (see, to that effect, judgments of 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraphs 78 and 79; of 15 March 2012, Phonographic Performance (Ireland), C‑162/10, EU:C:2012:141, paragraph 30; and of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 34).
31


Amongst those criteria, the Court has emphasised, above all, the essential role played by the user. The user makes an act of communication when he intervenes, in full knowledge of the consequences of his action, to give access to a protected work to his customers and does so, in particular, where, in the absence of that intervention, his customers would not, in principle, be able to enjoy the broadcast work (see, to that effect, judgments of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 46, and of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 35 and the case-law cited).
32


Next, it has specified that the concept of the ‘public’ refers to an indeterminate number of potential viewers and implies, moreover, a fairly large number of people (judgments of 7 March 2013, ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraph 32; of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 41; and of 8 September 2016, GS MediaC‑160/15, EU:C:2016:644, paragraph 36 and the case-law cited).
33


The Court has also noted that, according to a settled line of case-law, to be categorised as a ‘communication to the public’, a protected work must be communicated using specific technical means, different from those previously used or, failing that, to a ‘new public’, that is to say, to a public that was not already taken into account by the copyright holders when they authorised the initial communication to the public of their work (judgments of 7 March 2013, ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraph 26; of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraph 24; and of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 37).
34


Finally, the Court has underlined, on many occasions, that the profit-making nature of a communication, within the meaning of Article 3(1) of Directive 2001/29, is not irrelevant (see in particular the judgments of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 204; of 7 March 2013, ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraph 42; and of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 38).
36


Furthermore, as is apparent from Article 3(1) of Directive 2001/29, for there to be an ‘act of communication’, it is sufficient, in particular, that a work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether they avail themselves of that opportunity (see the judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraph 19 and the case-law cited).
37


The Court has already held, in that regard, that the provision, on a website, of clickable links to protected works published without any access restrictions on another site, affords users of the first site direct access to those works (judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraph 18; see also, to that effect, order of 21 October 2014, BestWater International, C‑348/13, EU:C:2014:2315, paragraph 15, and the judgment of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 43).
38


That is also the case for the sale of a multimedia player, such as that at issue in the main proceedings.
40


The Court has nevertheless held, in that respect, as regards the provision of television sets in hotel rooms, that while the ‘mere provision of physical facilities’ does not as such amount to a communication to the public within the meaning of Directive 2001/29, it remains the case that that facility may make public access to broadcast works technically possible. Therefore, if, by means of television sets thus installed, the hotel distributes the signal to customers staying in its rooms, then communication to the public takes place, irrespective of the technique used to transmit the signal (judgment of 7 December 2006, SGAE, C‑306/05, EU:C:2006:764, paragraph 46).
41


In the same way, it must be held that the present case does not concern a situation of the ‘mere’ provision of physical facilities for enabling or making a communication. As the Advocate General noted in paragraphs 53 and 54 of his opinion, Mr Wullems, with full knowledge of the consequences of his conduct, pre-installs onto the ‘filmspeler’ multimedia player that he markets add-ons that specifically enable purchasers to have access to protected works published — without the consent of the copyright holders of those works — on streaming websites and enable those purchasers to watch those works on their television screens (see, by analogy, judgment of 7 December 2006, SGAE, C‑306/05, EU:C:2006:764, paragraph 42). That intervention enabling a direct link to be established between websites broadcasting counterfeit works and purchasers of the multimedia player, without which the purchasers would find it difficult to benefit from those protected works, is quite different from the mere provision of physical facilities, referred to in recital 27 of Directive 2001/29. In that regard, it is clear from the observations presented to the Court that the streaming websites at issue in the main proceedings are not readily identifiable by the public and the majority of them change frequently.
43


In the second place, in order to be categorised as a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, the protected works must also in fact be communicated to a ‘public’ (judgment of 7 March 2013, ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraph 31).
44


In that regard, the Court has stated, first, that the concept of ‘public’ encompasses a certain de minimis threshold, which excludes from the concept groups of persons which are too small, or insignificant. Second, in order to determine that number, the cumulative effect of making the works available to potential recipients should be taken into account. Thus, it is relevant to know not only how many persons have access to the same work at the same time, but also how many of them have access to it in succession (see, to that effect, judgments of 15 March 2012, Phonographic Performance (Ireland), C‑162/10, EU:C:2012:141, paragraph 35; of 27 February 2014, OSA, C‑351/12, EU:C:2014:110, paragraph 28; and of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 43 and the case-law cited).
45


In the present case, it must be observed that, according to the referring court, the ‘filmspeler’ multimedia player has been purchased by a fairly large number of people. Furthermore, the communication at issue in the main proceedings covers all persons who could potentially acquire that media player and have an internet connection. Those people may access the protected works at the same time, in the context of the streaming of the works at issue on the internet. Thus, that communication is aimed at an indeterminate number of potential recipients and involves a large number of persons (see, by analogy, judgment of 7 March 2013, ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraphs 35 and 36).
47


Furthermore, as regards whether the works were communicated to a ‘new’ public, within the meaning of the case-law cited in paragraph 33 above, it should be noted that the Court, in its judgment of 13 February 2014, Svensson and Others (C‑466/12, EU:C:2014:76, paragraphs 24 and 31) and in its order of 21 October 2014, BestWater International (C‑348/13, EU:C:2014:2315), held that such a public is a public which was not taken into account by the copyright holders when they authorised the initial communication. In its judgment of 8 September 2016, GS Media (C‑160/15, EU:C:2016:644, paragraph 43), the Court observed that those decisions confirmed the importance of the consent of the holder of the copyright in protected works that have been made freely available on a website, having regard to Article 3(1) of Directive 2001/29 which specifically provides that every act of communication of a work to the public must be authorised by the copyright holder.
48


It is clear from the judgments referred to in the previous paragraph that posting hyperlinks on a website to a protected work which has been made freely available on another website with the consent of copyright holders of that work does not constitute a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29. In that regard, the Court held that as soon as and as long as that work is freely available on the website to which the hyperlink allows access, it must be considered that, where the copyright holders of that work have consented to such a communication, they have included all internet users as the public, such that the communication in question is not made to a new public. However, the same finding cannot be deduced from those judgments failing such an authorisation (see to that effect, the judgment of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraphs 42 and 43).
49


The Court therefore held, first of all, that where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29. The Court added, next, that the same applies in the event that that link allows users of the website on which it is posted to circumvent the restrictions taken by the site where the protected work is posted in order to restrict the public’s access to its own subscribers, the posting of such a link then constituting a deliberate intervention without which those users could not benefit from the works broadcast. Finally, the Court stated that, when the posting of hyperlinks is carried out for profit, it can be expected that the person posting such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally published on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29 (see judgment of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraphs 49 to 51).
50


In the present case, it is common ground that the sale of the ‘filmerspeler’ multimedia player was made in full knowledge of the fact that the add-ons containing hyperlinks pre-installed on that player gave access to works published illegally on the internet. As was noted in paragraph 18 above, the advertising of that multimedia player specifically stated that it made it possible, in particular, to watch on a television screen, freely and easily, audiovisual material available on the internet without the consent of the copyright holders.
53


In the light of the foregoing considerations, the answer to the first and second questions referred is that the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, must be interpreted as covering the sale of a multimedia player, such as that at issue in the main proceedings, on which there are pre-installed add-ons, available on the internet, containing hyperlinks to websites — that are freely accessible to the public — on which copyright-protected works have been made available without the consent of the right holders.
55


In that regard, it must be borne in mind that, according to the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (see, in particular, judgment of 22 September 2016, Microsoft Mobile Sales International and Others, C‑110/15, EU:C:2016:717, paragraph 18 and the case-law cited).
56


The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, in particular, 22 September 2016, Microsoft Mobile Sales International and Others, C‑110/15, EU:C:2016:717, paragraph 19 and the case-law cited).
61


First of all, it must be borne in mind that those conditions are cumulative in the sense that non-compliance with any one of them will lead to the act of reproduction not being exempted, pursuant to Article 5(1) of Directive 2001/29, from the reproduction right provided for in Article 2 of that directive (judgment of 16 July 2009, Infopaq International, C‑5/08, EU:C:2009:465, paragraph 55, order of 17 January 2012, Infopaq International, C‑302/10, EU:C:2012:16, paragraph 26).
62


Furthermore, it is clear from the case-law of the Court that the conditions set out above must be interpreted strictly because Article 5(1) of Directive 2001/29 is a derogation from the general rule established by that directive that the copyright holder must authorise any reproduction of his protected work (judgments of 16 July 2009, Infopaq International, C‑5/08
EU:C:2009:465, paragraphs 56 and 57, and of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 162; order of 17 January 2012, Infopaq International, C‑302/10, EU:C:2012:16, paragraph 27, and judgment of 5 June 2014, Public Relations Consultants Association, C‑360/13, EU:C:2014:1195, paragraph 23).
63


That is all the more so given that the exemption must be interpreted in the light of Article 5(5) of Directive 2001/29, under which that exemption is to be applied only in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the right holder (judgment of 16 July 2009, Infopaq International, C‑5/08, EU:C:2009:465, paragraph 58).
65


In that respect, as is apparent from recital 33 of Directive 2001/29, a use should be considered lawful where it is authorised by the right holder or where it is not restricted by the applicable legislation (see also judgment of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 168, and order of 17 January 2012, Infopaq International, C‑302/10, EU:C:2012:16, paragraph 42).
67


In its judgment of 4 October 2011, Football Association Premier League and Others (C‑403/08 and C‑429/08, EU:C:2011:631, paragraphs 170 to 172), the Court held that, from the television viewers’ standpoint, the ephemeral acts of reproduction at issue in that case, which enabled the proper functioning of the satellite decoder and the television screen, enabled the broadcasts containing protected works to be received. The Court held, in that regard, that the mere reception of those broadcasts in itself — that is to say, the picking up of the broadcasts and their visual display in a private circle — did not reveal an act restricted by the relevant legislation and such reception was to be considered lawful in the case of broadcasts from a Member State when brought about by means of a foreign decoding device. The Court concluded that the sole purpose of the acts of reproduction at issue was to enable a ‘lawful use’ of the works within the meaning of Article 5(1)(b) of Directive 2001/29.
70


It must also be held that, as a rule, temporary acts of reproduction, on a multimedia player such as that at issue in the main proceedings, of copyright-protected works obtained from streaming websites belonging to third parties offering those works without the consent of the copyright holders are such as to adversely affect the normal exploitation of those works and causes unreasonable prejudice to the legitimate interests of the right holder, because, as the Advocate General observed in points 78 and 79 of his opinion, that practice would usually result in a diminution of lawful transactions relating to the protected works, which would cause unreasonable prejudice to copyright holders (see, to that effect, judgment of 10 April 2014, ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph 39).