Sitchting Brein V. Ziggo BV And XS4ALL Internet BV – After All The ...

by Ana Margarida Pereira, lawyer at CCM and member of CEDU

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The concept of ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society has been much discussed by the Court of Justice[i]. One of the most recent developments, and in my opinion the one which has the most impact in the information society, is the Case C-610/15, Sitchting Brein v. Ziggo BV and XS4ALL Internet BV.

The Court decided that making available and managing on the internet a sharing platform which by means of indexation of metadata relating to protected works and the provision of a search engine allows users of that platform to locate those works and to share them in the context of a peer-to-peer network constitutes a ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29/EC. The parts involved were Stichting Brein, a Netherlands foundation which safeguards the interests of copyright holders, and Ziggo and XS4ALL, internet access providers.  A significant number of their subscribers use the online sharing platform The Pirate Bay, an indexer of BitTorrent files.

In the context of the main proceedings, Stichting Brein requested Ziggo and XS4ALL to be ordered to block the domain names and IP addresses of the online sharing platform The Pirate Bay in order to prevent the services of those internet access providers from being used to infringe the copyright and related rights of the right-holders.

The first instance national court upheld Stichting Brein’s requests. However, these were rejected on appeal, and The Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings and referred two preliminary questions to the Court of Justice of the European Union.

With its questions The Hoge Raad der Nederlandem wanted to know, as Maciej Szpunar puts it, if the operators of indexing sites of peer-to-peer networks can be regarded as being the originators of those infringements (when the copyright infringements are committed in the context of the use of those networks), – directly liability – or, even if they are not directly liable, can an order be made blocking access to their websites – indirect liability[ii].

Regarding the first question the Court begins by stating that the concept of “communication to the public” created a right to the authors to intervene between the possible users of their work and the communication to the public which such users might contemplate making, in order to prohibit such communication. The Court also enhances the importance of the user and the deliberate nature of his intervention. In order to make an act of communication the user must intervene knowing the consequences of such action, and with the intent of providing access to a protected work.

The Court considers that any act by which a user, with full knowledge of the relevant facts, provides its clients with access to protected works is liable to constitute an ‘act of communication’ for the purposes of Article 3(1) of Directive 2001/29[iii].

Therefore by allowing users to provide protected works in their peer-to-peer platform, and by creating it and managing it, the administrators of The Pirate Bay, were providing access to the  protected works. It was clear to the CJEU that these providers were (and are) playing an essential role in making such works available.

The Court also considered that the operators of the online sharing platform The Pirate Bay could not be considered to be making a ‘mere provision’ of physical facilities for enabling or making a communication, within the meaning of recital 27 of Directive 2001/29. Not only this platform facilitates the download of the protected works, but it also classifies such works and deletes the ones considered obsolete. In light of such facts it was clear to the Court that making available and managing such platform was an act of communication for the purposes of Article 3(1) of Directive 2001/29.

However the definition of “communication to the public” also demands that the protected works be in fact communicated to a “public”. In order to determine if there is a “public” the Court ruled that it was 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.

In this case it was notable that many subscribers of Ziggo and XS4ALL used the online platform The Pirate Bay. It was also notable that, as we know, this platform is used by millions of people every day. Therefore, the communication is aimed at an indeterminate number of potential recipients and involves a large number of persons. Naturally the Court ruled that a communication such as the one described was indeed a communication to a public within the meaning of Article 3(1) of Directive 2001/29.

But was this a “new” public? A “new” public, such as the Court defines it, is a public not taken into consideration by the copyright holders when they authorized the initial communication.

The Court decided that not only there was an “act a communication” and a “public” but also a “new” public, for the copyright holders did not authorized such access to their works, nor was The Pirate Bay unware of that fact. The fact that such activities were carried out with the purpose of obtaining a profit were also taken into consideration by the Court.

Given these considerations, CJEU ruled that making available and managing an online sharing platform, such as the one described, constitutes a ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29.

While determining what constitutes a “communication to the public” is an arduous and very complex task, the Court has been giving national judges new instruments to complete such task. Communication to the public involves necessarily an act of communication to a new audience.

Then, we may conclude that a “communication to the public” requires three cumulative requirements to be met: the existence of an act of communication, a public, and a new public, i.e. an audience not considered by the copyright holder when authorizing the utilization of the protected works.

This case is relevant not only because it has deepened this concept, but because it establishes for the first time that file sharing sites are responsible for copyright infringement.

The impact of this decision is clear: copyright holders will start asking internet service providers to block access to platforms that allow the sharing of copyright-protected files. Although requests of this nature have already been made in countries like Portugal, Sweden, Germany, Italy and Denmark, this decision will undoubtedly have an impact that it is not yet possible to measure.

[i] Case C-117/15 -Reha Training,  case C-160/15- GS Media, case C-527/15 -Stichting Brein, for instance.

[ii] Case C-610/14 paragraph 17 of the Opinion of Maciej Sxpunar delivered on 8 february 2017 (EU:C:2017:99).

[iii] Case C- 610/15, Sitchting Brein vs Ziggo BV and XS4ALL Internet BV paragraph 34, on 14 june 2017 (EU:C:2017:456).

Picture credits: The Pirate Bay  by Bhupinder Nayyar.

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