Court Of Justice Of European Union Holds That Online Sharing Platform 'The Pirate Bay' Is Making Acts Of Communication To The Public

On 14 June 2017, the Court of Justice of the European Union (the "ECJ") handed down a preliminary ruling in case C-610/15 with regard to the interpretation of the concept of "communication to the public" within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of specific aspects of copyright and related rights in the information society (the "Infosoc Directive").

The preliminary ruling stems from a dispute between, on one hand, Stichting Brein, a Dutch foundation which safeguards the interests of copyright holders ("Brein") and, on the other hand, Ziggo BV ("Ziggo") and XS4ALL Internet BV ("XS4ALL"), two internet access providers. Brein requested before the Dutch courts that Ziggo and XS4ALL be ordered to block the domain names and IP addresses of the notorious online sharing platform "The Pirate Bay" ("TPB"). The case went up to the Supreme Court of the Netherlands (the "Court"). The Court first decided that TPB had made protected works available to the public without the right holders' consent. The Court then added that subscribers to Ziggo and XS4ALL had also made protected works available, through the online platform TPB, without the right holders' consent, which meant that they infringed the copyright and related rights of these right holders. Nevertheless, the Court referred a request for a preliminary ruling to the ECJ asking whether the concept of "communication to the public" should be interpreted as including the making available and management of an internet 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.

The ECJ first recalled that the concept of "communication to the public" must be interpreted broadly and that there are two cumulative criteria, namely: (i) an "act of communication" of a work; and (ii) the communication of that work to a "(new) public".

Act of Communication

In order to determine whether the first requirement was met, the ECJ applied the complementary criteria that it had developed in Stichting Brein v Jack Frederik Wullems, i.e., the importance of the role played by the user and the deliberate nature of his intervention (See, VBB on Belgian Business Law, Volume 2017, No. 4, p. 13, available at www.vbb.com). Then, making reference to its...