In a judgment delivered on 14 June 2017, the Court of Justice of the European Union (CJEU) decided that making available a online sharing platform falls within the concept of “communication to the public” for the purposes of copyright law, and can therefore amount to infringement of copyright in protected works which are shared via that platform. This decision bolsters the ability of copyright owners to pursue the operators of such platforms, and to obtain relief against intermediaries (in particular ISPs) forcing them to block their users from accessing such platforms.
The immediate practical consequence of the CJEU’s decision is that the national courts are entitled to grant blocking injunctions against ISPs in order to block users from accessing TPB. This is plainly a positive outcome from the point of view of copyright holders, giving them stronger rights to restrict unauthorised distribution of their protected works. The generally pro-rightsholder approach of the CJEU in this case mirrors the recent efforts of the English courts to modernise its remedies in order to secure adequate protection against infringing activities, as reported in a previous blog post.
The present case concerned the well-known sharing platform The Pirate Bay (TPB). TPB is an indexer of BitTorrent files. BitTorrent is a protocol through which users can share files. BitTorrent divides files for sharing into segments, thus removing the need to rely on a central server to store those files. Users who wish to make a file on their computer available to other users have to create a torrent file. These torrent files are uploaded by the users to TPB which then proceeds to index them so that they can be found by all users of TPB, and the works to which those torrent files refer can be downloaded onto the users’ computers in several segments.
The question before the CJEU was whether the operation of TPB (i.e. 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) amounted to a “communication to the public” within the meaning of Article 3(1) of the InfoSoc Directive, which sets out the exclusive right of authors to control the communication of their work. The CJEU held that it was.
This decision follows a line of recent cases in which the CJEU has broadened the scope of the concept of “communication to the public” to cover activities which are detrimental to the rights of copyright holders, yet may not fall within the literal wording of Article 3(1). See, for example, the decisions in GS Media (concerning posting, on a website, of a hyperlink to protected works which are freely available on another website without the consent of the copyright holder) and Filmspeler (concerning the sale of multimedia players on which there are pre-installed add-ons containing hyperlinks to websites — that are freely accessible to the public — on which copyright-protected works have been made available to the public without the consent of the right holders). In essence, the CJEU appears to regard any act by which a user, with full knowledge of the relevant facts, provides its clients with direct or indirect access to protected works as liable to constitute an “act of communication” for the purposes of the InfoSoc Directive.