Earlier this year we blogged on the Advocate General's opinion in the widely reported case concerning the notorious website known as The Pirate Bay (see here). We now report on the eagerly awaited CJEU decision published today, in which it ruled that the activities of such websites could constitute a communication to the public and thereby copyright infringement.
Brief re-cap of the case
The Pirate Bay (TPB) is a BitTorrent peer-to-peer (P2P) file sharing site that lists catalogues of files (such as music and film files) that are shared via trackers. According to Stichting Brein over 90% of the files contain works made available to users without the copyright owners' consent; TPB does not actually host the infringing content itself.
The case began with the Dutch District court ordering Dutch internet service providers (ISPs), Ziggo BV and XS4ALL Internet BV, to block subscribers' access to TPB. The case then progressed through the Dutch courts, culminating in a reference to the CJEU by the Dutch Supreme Court.
The referred questions were in essence:
- Is it a communication to the public when a website operator makes it possible to find files containing copyright-protected works, which are offered for sharing on a P2P network, by indexing the metadata relating to those files and by providing a search engine?
- If the answer is no, can an ISP be requested to block access for its users to an indexing site of a P2P network, like TPB?
Advocate General opinion
As discussed in our blog, Advocate General (AG) Szpunar recommended that the CJEU answer the questions as follows:
It does constitute a "communication to the public" when a website operator makes it possible, by indexing and providing a search engine, to find files containing works protected by copyright, which are offered for sharing on a P2P network, if that operator was aware that the work was made available on the network without the consent of the copyright owner and did not take action in order to make access to that work impossible.
Article 8(3) of the Infosoc Directive (2001/29/EC) did enable an injunction to be obtained against an ISP ordering it to block access for its users to an indexing site of a P2P network, if the website operator could, under national law, be held liable for copyright infringements committed by users of that network, provided that the measure was proportionate to the significance and seriousness of the copyright infringements committed, which was a matter for the national court to determine. (The AG provided his opinion on this question in case the CJEU disagreed with him in relation to the first question.)
In a decision, which follows closely that of the AG's opinion, the CJEU ruled in relation to the first question that:
The concept of communication to the public, within the meaning of Article 3(1) of the InfoSoc Directive must be interpreted as covering, in circumstances such as those at issue in the main proceedings, the making available and management, on the internet, of 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.
(In the light of its answer to the first question, the CJEU did not feel it necessary to answer the second question.)
Key points from the CJEU leading to this conclusion include the following:
It followed from the recitals to the InfoSoc Directive that the concept of communication to the public must be interpreted broadly. It involved two cumulative criteria: an "act of communication" of a work and the communication of that work to a "public".
As the AG had noted, it was not disputed that copyright-protected works were, by means of the online sharing platform TPB, made available to the users of that platform in such a way that they could access those works from wherever and whenever they individually choose. TPB's operators by making that platform available and managing it, provided their users with access to the works. They could therefore be regarded as playing an essential role in making the works available.
The TPB operators could not be considered to be making a "mere provision" of physical facilities for enabling or making a communication. They indexed the torrent files so they could be easily located and also deleted obsolete or faulty files (among other things).
The works were communicated to a "public". The communication was aimed at an indeterminate number of potential recipients and involved a large number of persons.
It was a "new" public. It was clear that TPB's operators could not be unaware that the platform provided access to works published without the consent of the copyright owners. (TPB had been expressly alerted by copyright owners to the illegal nature of the information appearing on the platform.)
Finally, there was no doubt that TPB's activities were carried out with the purpose of obtaining a profit.
The CJEU's ruling closely follows that of AG Szpunar's opinion in which he had provided a sound and sensible analysis of the issues, providing clear guidance for both copyright owners and ISPs. Copyright owners will welcome the CJEU's endorsement of that opinion and much awaited confirmation that that the activities of notorious website operators like TPB should be classed as a communication to the public and consequently an infringement of copyright.
It is perhaps a shame that the CJEU did not take the opportunity to consider the second question on the issue of website blocking orders, which national courts, such as the UK, have been granting for a number of years.