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The request for a preliminary ruling concerns the interpretation of Article 3(1) and Article 5(1) and (5) of the Infosoc directive). The request was made in proceedings between Stichting Brein, a foundation that protects the interests of copyright holders, and Mr Jack Frederik Wullems, concerning the sale by him of a multimedia player enabling free access to audiovisual works protected by copyright without the consent of the right holders.

Mr Wullems sold, on several internet sites, different models of a multimedia player. Via that player there is add-ons available, created by third parties. Those add-ons contain links which, when they are activated by the remote control of the multimedia player, connect to streaming websites operated by third parties, some of which give access to digital content with the authorisation of the copyright holders, whilst others give access to such content without their consent. In particular, the add-ons’ function is to retrieve the desired content from streaming websites and make it start playing, with a simple click, on the multimedia player sold by the defendant connected to a television screen.

Personally, I find the two last questions (question 3 and question 4) from the National Court to the ECJ in this case, to be very important when it comes to the harmonisation of copyright law within the EU

(3) Should Article 5 of Directive 2001/29 be interpreted as meaning that there is no “lawful use” within the meaning of Article 5(1)(b) of that directive if a temporary reproduction is made by an end user during the streaming of a copyright-protected work from a third-party website where that copyright-protected work is offered without the authorisation of the right holder(s)?

(4) If the answer to the third question is in the negative, is the making of a temporary reproduction by an end user during the streaming of a copyright-protected work from a website where that copyright-protected work is offered without the authorisation of the right holder(s) then contrary to the “three-step test” referred to in Article 5(5) of Directive 2001/29?

In its reasoning the ECJ states: “[…]it is clear from the case-law of the Court that the conditions set out above [in Article 5 (1)] 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).

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).”

Then the ECJ concludes: “Article 5(1) and (5) of Directive 2001/29 must be interpreted as meaning that acts of temporary reproduction, on a multimedia player, such as that at issue in the main proceedings, of a copyright-protected work obtained by streaming from a website belonging to a third party offering that work without the consent of the copyright holder does not satisfy the conditions set out in those provisions.”

I think it makes sense to apply this reasoning also to temporary reproductions on other devices such as a smart-tv, a personal computer etc., in the context of streaming media from third party websites offering that work without the consent of the copyright holder.

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