17 Jul 2017 “Communication to the public” meaning : includes facilitating online access to copyright material
The “communication to the public” right was first brought into law by the Information Society Directive in 2003, and transposed into UK law by amendment to the CDPA 1988, whereby a communication to the public is defined as:
– the broadcast of a work; [or]
– the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.”
The exact meaning of this definition has been under constant scrutiny by the courts and legal academics during the intervening fourteen years, and while certain interpretations and meanings are now well-established, others are yet to be found and agreed.
For instance, there is now a general consensus that a live stream falls within the meaning of “broadcast”, and that the meaning of “making available” includes on-demand video and audio streams, as well as downloads and uploads.
On the other hand, there has continued to be much less clarity around certain other potentially infringing activities, which may come within the definition of communication to the public.
We have a little-known Dutch anti-piracy organisation to thank for a couple of recent rulings from the ECJ, which very clearly establish certain piratical behaviours as being infringements of the right of communication to the public.
In both cases, Stichting Brein (a coalition of Dutch music and entertainment industry bodies) sought preliminary rulings from the ECJ on the meaning of “communication to the public”, in the course of copyright infringement cases being heard in the courts of the Netherlands.
The first ruling was issued in the spring of this year, in the case of Stichting Brein v Wullems, otherwise known as the Filmspeler case. In this case, the defendant had been providing to consumers a multi-media player with pre-installed hyperlinks to websites that offered unrestricted access to copyright protected works. The defendant had no licence or authorisation from the owners of the copyright, and moreover was advertising this feature as being one of the key selling points for the device. The ECJ ruled that the meaning of communication to the public also encompasses the activity of facilitating such communication; so, in providing the means by which online access to unauthorised copyright content may be gained, the defendant had infringed the copyright owners’ rights to control the act of communication to the public.
The second ruling was issued last month, in a case that Stichting Brein brought against The Pirate Bay (one of the most persistent offenders in the business of providing peer-to-peer music file-sharing facilities) without the copyright owners’ authority. One of TPB’s favourite defence arguments is that it does not actually provide the unauthorised music files, but merely provides a service on which the hosting of unauthorised files is an incidental occurrence. The ECJ’s ruling once again looked to the act of facilitation as the key inidicator of an act of communication to the public; in other words, even though TPB does not itself make unauthorised copyright works available on its website, it plays an essential role in enabling this to occur in full knowledge of the likely consequences.
The ruling says: “In the present case it is common ground that copyright-protected works are, through The Pirate Bay, made available to the users of that platform in such a way that they may access those works from wherever and whenever they individually choose. Whilst it accepts that the works in question are placed online by the users, the court highlights the fact that the operators of the platform play an essential role in making those works available.”
The ECJ has once again shown itself to be a proactive defender of the rights of copyright owners, and has shown its willingness to give “communication to the public” its widest possible meaning in light of modern technological developments; in these two cases, extending the idea of communication to the public to include acts of “facilitation” rather than restricting the meaning only to acts of direct intervention as was previously the view.
These useful rulings suggest that, although we cannot know what will happen post-Brexit, it is likely that there will be strong commercial incentives for UK law to maintain close harmonisation with EU copyright law.