CJEU Filmspeler is a ground-breaking copyright decision in many ways. By qualifying the distribution of technical devices (intended to make streaming of copyright infringing content possible) as a making available of works to the public, the CJEU has once again shown that it interprets exploitation rights broadly and from an economical point of view. Furthermore, the CJEU has clarified that streaming on structurally copyright infringing websites is a copyright infringement itself. CJEU Filmspeler is a good decision for rights holders and could even become a game-changer with respect to enforcement of copyrights.
CJEU Filmspeler (ECLI:EU:C:2017:300, judgment dated 26 April 2017, Case C-527 / 15 – Stichting Brein [Filmspeler]) is a groundbreaking decision in many ways. It concerned the distribution of a multimedia player (sold as “Filmspeler”, Dutch for “film player”) in the Netherlands enabling its users to stream copyright infringing content on their TVs and the question of whether individuals streaming clearly copyright infringing content violates copyright by doing so.
Preparatory acts to copyright infringements can be copyright infringements themselves
First, the CJEU has ruled that the mere distribution of technical devices enabling the user of the technical device to stream copyright infringing content itself violates of the right of making works available to the public. This means that preparatory acts alone can constitute copyright infringement, if they are aimed at enabling copyright infringement. Also, the CJEU has confirmed earlier decisions according to which statutory copyright provisions have to be interpreted broadly and rather from an economic than from a technical or formal point of view to ensure a high level of copyright protection.
Streaming is illegal reproduction and therefore a copyright infringement
Second, the CJEU ruled that streaming of clearly copyright infringing content violates the author’s right of reproduction in his or her respective work. No legal exception for reproduction through streaming applies. By this, the priorly prevailing opinion in Germany considering mere streaming of illegal content to be legal is clearly overruled.
CJEU Filmspeler could have wide-reaching consequences on liability for copyright infringements in general
Furthermore, CJEU Filmspeler could have great influence on the general classification of acts contributing to copyright infringements. The German Federal Supreme Court (BGH) differentiates between perpetrators, (persons who directly perform the infringing act), aiders (persons willfully contributing to the infringing act) and abettors (persons abetting others to commit infringing acts) and “Stoerer” (persons causally contributing to the infringing act without doing this (necessarily) willfully), who unlike perpetrators, aiders and abettors are not liable for damages. This differentiation may be inconsistent with CJEU Filmspeler. It appears that the CJEU considers every person who is willfully (and substantially) contributing to copyright infringing acts to be a perpetrator. It remains to be seen if the German Federal Supreme Court will react to CJEU Filmspeler. Until now, the BGH has been of the opinion that the classification of persons contributing to copyright infringements as perpetrators, aiders, abettors or “Stoerer” is not regulated by EU law and can therefore freely be determined by German courts. However, this opinion seems difficult to reconcile with CJEU Filmspeler.
CJEU Filmspeler could favour website blocking through access providers
Lastly, CJEU Filmspeler may substantially affect future website blocking cases against access providers. So far, the BGH opines that it is unreasonable to require access providers to take any blocking measures if the rights holder cannot prove that he has taken sufficient actions against the operators of the structurally copyright infringing website to be blocked and the hosting provider of that website (BGH, GRUR 2016, 268 n. 82 et seq., – Stoerer-Liability of the Access Provider). This factual subsidiarity requirement of the BGH can (partly) be justified on the grounds that access providers have no contractual relationship to the perpetrators and are therefore “far away” from the infringement. The BGH did not consider copyright infringements by users through streaming in its decision.
Since streaming is a copyright violation (by reproduction) under CJEU Filmspeler, the BGH will now have to consider copyright infringement by users through streaming. This will put access providers much “closer” to infringing copyrights. Furthermore, since access providers are contractual partners of the individuals streaming, they may be infringing copyrights by simply providing internet access. Consequently, the factual subsidiarity requirement of the BGH could fall in cases against access providers or at least be limited to requiring them to prove that sufficient action has been taken to hold the operators of the structurally copyright infringing website liable.
By qualifying the distribution of technical devices (intended to make streaming of copyright infringing content possible) as a making available to the public, the CJEU has again shown that it interprets the making available right broadly from an economical point of view, as opposed to a less technical or formal one. Furthermore, the CJEU has clarified that streaming on structurally copyright infringing websites itself constitutes copyright infringement. Even though the decision gives answers to important questions, it also raises a number of new legal questions. In sum, however, CJEU Filmspeler can be regarded a good decision for rights holders and may even become a game-changer with respect to copyright enforcement.