May 2, 2017

EU Court Delivers Set-Top Box Ruling

The long-awaited decision in the Filmspeler case, concerning the legality or otherwise of set-top boxes, was handed down by the Court of Justice of the European Union last week.

The parties to the lawsuit are Stichting Brein, the Dutch anti-piracy organization and Jack Frederik Wullems, owner of the website and the vendor behind various multimedia models that go by the name Filmspeler.

The Filmspeler multimedia device is used to connect a source, image and sound from the internet to a television screen, ultimately meaning users can stream directly from a web portal or website. The device, however can host, and is often sold, with add-ons and hyperlinks that would direct users of the device to third party streaming websites whereby they could watch various sporting events, televisions series and movies without charge. Many of the rights holders to these programmes had not consented to this exploitation.

In their application, Stichting Brein stated that Wullems was carrying out a 'communication to the public' which is against Dutch copyright Law. The case came before the District Court of Central Netherlands who ultimately decided to stay proceedings in order to seek guidance from the CJEU on the meaning of 'communication to the public'.

Last week the CJEU handed down their decision and had the following things to say…..

"In its judgment today, the Court of Justice holds that the sale of a multimedia player, such as the one in question, is a 'communication to the public', within the meaning of the directive".

The Court explained that it is often the case that a website will contains many links to other websites where protected works can be viewed 'without any access restrictions', much like how the Filmspeler device works. However the Court were happy that Mr Wullems had full knowledge that his device would have the potential, through the addition of the add-ons, to exploit protected works. In addition to this the Court observed that the device has been made available to a large number of people and that the intention of Mr Wullems was to make profit from people wishing to stream works they would normally have to pay for.

The Court found that copyright holders of the protected works are being negatively prejudiced in the sense that 'lawful transactions' of the protected works are inevitably going to diminish through the reproduction of such devices like Filmspeler.

This is a hot topic currently with the proliferation of these type of boxes that allow access to content (normally sport or movies) which is normally restricted to subscribers. This judgment will therefore be significant, expanding as it does the definition of 'communication to the public' and opening up potential new avenues of enforcement for rights holders.

in: Copyright, EU/International

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