Stichting Brein v Ziggo BV and XS4All Internet BV.
Date: 2017-06-14
20


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 (judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 25 and the case-law cited).
21


As Article 3(1) of Directive 2001/29 does not define the concept of ‘communication to the public’, the meaning and scope of that concept 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 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 26 and the case-law cited).
22


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 principal 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 the concept of ‘communication to the public’ must be interpreted broadly, as recital 23 of the directive indeed expressly states (judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 27 and the case-law cited).
23


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 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 28 and the case-law cited).
24


It is clear from Article 3(1) of Directive 2001/29 that the concept of ‘communication to the public’ involves two cumulative criteria, namely an ‘act of communication’ of a work and the communication of that work to a ‘public’ (judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 29 and the case-law cited).
25


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 (judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 30 and the case-law cited).
26


Amongst those criteria, the Court has emphasised, firstly, the indispensable role played by the user and the deliberate nature of his intervention. That user makes an act of communication when he intervenes, in full knowledge of the consequences of his action, to give his customers access to a protected work, particularly where, in the absence of that intervention, those customers would not be able to enjoy the broadcast work, or would be able to do so only with difficulty (see, to that effect, judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 31 and the case-law cited).
27


Secondly, 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 (judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 32 and the case-law cited).
28


The Court has also noted that, according to a settled line of case-law, in order 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 of their work to the public (judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 33 and the case-law cited).
29


Finally, the Court has underlined, on numerous occasions, that the profit-making nature of a communication, within the meaning of Article 3(1) of Directive 2001/29, is not irrelevant (judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 34 and the case-law cited).
31


Furthermore, as is apparent from Article 3(1) of Directive 2001/29, in order for there to be an ‘act of communication’, it is sufficient, in particular, that a work is made available to a public in such a way that the persons comprising that public may access it, from wherever and whenever they individually choose, irrespective of whether they avail themselves of that opportunity (see, to that effect, judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 36 and the case-law cited).
32


The Court has already held, in this regard, that the provision, on a website, of clickable links to protected works published without any access restrictions on another site, affords users of the first site direct access to those works (judgment of 13 February 2014, Svensson and Others, C‑466/12,EU:C:2014:76, paragraph 18; see also, to that effect, order of 21 October 2014, BestWater International, C‑348/13, not published, EU:C:2014:2315, paragraph 15, and judgment of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 43).
33


The Court has also held the same to be the case for the sale of a multimedia player on which there are pre-installed add-ons, available on the internet, containing hyperlinks to websites — that are freely accessible to the public — on which copyright-protected works have been made available without the consent of the rightholders (see, to that effect, judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraphs 38 and 53).
40


In the second place, in order to be categorised as a ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, the protected works must also in fact be communicated to a ‘public’ (judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 43 and the case-law cited).
41


In that regard, the Court has stated, first, that the concept of ‘public’ involves a certain de minimis threshold, which excludes from that concept groups of persons concerned which are too small, or insignificant. Second, in order to determine that number, the cumulative effect of making the works available to potential recipients should be taken into account. Thus, it is necessary to know not only how many persons have access to the same work at the same time, but also how many of them have access to it in succession (see, to that effect, judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 44 and the case-law cited).
42


In the present case, it is apparent from the order for reference that a large number of subscribers to Ziggo and XS4ALL have downloaded media files using the online sharing platform TPB. It is also clear from the observations submitted to the Court that this platform is used by a considerable number of persons, the operators of TPB claiming, on their online sharing platform, to have several dozens of millions of ‘peers’. In this respect, the communication at issue in the main proceedings covers, at the very least, all of the platform’s users. These users can access, at any time and simultaneously, the protected works which are shared by means of the platform. Thus, that communication is aimed at an indeterminate number of potential recipients and involves a large number of persons (see, to this effect, judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 45 and the case-law cited).
44


Furthermore, with regard to the question whether those works have been communicated to a ‘new’ public within the meaning of the case-law cited in paragraph 28 of the present judgment, the Court, in its judgment of 13 February 2014, Svensson and Others (C‑466/12, EU:C:2014:76, paragraphs 24 and 31) as well as in its order of 21 October 2014, BestWater International (C‑348/13, not published, EU:C:2014:2315, paragraph 14), has held that such a public is a public that was not taken into account by the copyright holders when they authorised the initial communication.
45


In the present case, it is apparent from the observations submitted to the Court, first, that the operators of the online sharing platform TPB were informed that this platform, which they make available to users and manage, provides access to works published without authorisation of the rightholders and, second, that the same operators expressly display, on blogs and forums available on that platform, their purpose to make protected works available to the users, and encourage the latter to make copies of those works. In any event, it is clear from the order for reference that the operators of the online sharing platform TPB could not be unaware that this platform provides access to works published without the consent of the rightholders, given that, as expressly highlighted by the referring court, a very large number of torrent files on the online sharing platform TPB relate to works published without the consent of the rightholders. In those circumstances, it must be held that there is communication to a ‘new public’ (see, to that effect, judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 50).