The European Court of Justice has ruled that devices pre-configured to stream unlicensed content can infringe copyright. The Court also clarified that end users who stream content may also be breaking the law.
A hot topic in online piracy in recent months has been the use of devices configured to allow users to stream movies and TV shows free of charge. Most of these devices make use of a free and open-source media player software application, known as Kodi.
Kodi is a multi-platform software which can be installed on most operating systems running on a wide variety of devices. It allows users to play and view most videos, music, podcasts, and other digital media files from local and network storage media and the internet and is itself perfectly legal.
Kodi does not provide any media itself and users must provide their own content or manually point Kodi to third party online services. Kodi has however attracted negative attention and in the press been conflated with online piracy as the software can also be used to facilitate unauthorised access to copyrighted content, through unaffiliated third-party 'add-ons'.
Downloading a movie from the internet (for example using BitTorrent) without the permission of the copyright holder amounts to infringement of the copyright in that work as an unauthorised copy of the work is created and saved on the downloaders computer. Whilst falling within a similar area, streaming such content through a web browser or using Kodi add-ons has until now been considered a legal grey area.
Streaming online is when multimedia, such as video or music, is constantly received by and presented to the end-user while being delivered by a provider. Popular examples of streaming are watching videos on Youtube or playing music on Spotify. Streaming is distinct from downloading as a lasting copy of the music or video is not saved to the hard drive or storage memory of the user’s device. When streaming, the copy being made is only temporarily stored (known as buffering and caching).
Article 2 of Directive 2001/29/EC (the InfoSoc Directive) requires that EU member states provide copyright holders the exclusive right to authorise or prohibit the making available of their works to the public. The distinction between downloading and streaming was thought by many to be important as Article 5 of the InfoSoc Directive provides:
"Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable:
(a) a transmission in a network between third parties by an intermediary, or
(b) a lawful use
of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2."
In 2014 in the case of Public Relations Consultants Association v Newspaper Licensing Agency Ltd, the United Kingdom Supreme Court sought a preliminary ruling from the European Court of Justice on whether internet users who view websites on their computers without downloading or printing them out are committing infringements of copyright by reason of the creation of on-screen copies and cached copies, unless they have the authorisation of the rights holders to make such copies. The ECJ stated:
"Article 5 of Directive 2001/29 must be interpreted as meaning that the on-screen copies and the cached copies made by an end-user in the course of viewing a website satisfy the conditions ... and that they may therefore be made without the authorisation of the copyright holders."
It was therefore widely considered that as long as an internet user was streaming copyrighted content, rather than downloading, it was legal for the user, who isn’t wilfully making a copy. Indeed, Derbyshire County Council trading standards was quoted on 4 March 2017 stating "Accessing premium paid-for content without a subscription is considered by the industry as unlawful access, although streaming something online, rather than downloading a file, is likely to be exempt from copyright law".
Streaming unlicensed content through Kodi Add-ons
In the recently published decision in the case of Stichting Brein v Wullems t/a filmspeler C-527/15, the European Court of Justice ruled that devices pre-configured to stream unlicensed content can infringe copyright and that end users who stream such content may also be breaking the law.
The case concerned a reference for a preliminary ruling in litigation between Dutch anti-piracy organisation Stichting Brein and Jack Frederik Wullems, trading under the name Filmspeler, over the sale of Kodi based media players with pre-installed add-ons. Some of the add-ons provided users of the device with links to websites which provide access to digital content with the authorisation of the copyright holders, whilst others give users access to such content without their consent. Whilst Mr Wullems advertised the media player stating that it made it possible to watch on a television screen, freely and easily, audiovisual material available on the internet without the consent of the copyright holders, he argued that the sale of these devices with the add-ons pre-installed did not amount to a “communication to the public” as determined by the EU Copyright Directive. In particular it was noted that the add-ons were freely available and could have been installed in the media player by the end user themselves.
The first question the European Court of Justice was asked to consider was whether the sale of the devices was a “communication to the public” of the copyrighted works streamed without the authorisation of the right holders through the box. Applying a broad interpretation in light of the objectives of the directive, the Court concluded that it was, stating:
"It is common ground that the sale of the ‘filmerspeler’ multimedia player was made in full knowledge of the fact that the add-ons containing hyperlinks pre-installed on that player gave access to works published illegally on the internet ... Therefore, it is necessary to hold that the sale of such a multimedia player constitutes a ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29."
The court considered Mr Wullem’s role of pre-installing the add-ons enabling a direct link to be established between websites broadcasting counterfeit works and purchasers of the multimedia player, without which the purchasers would find it difficult to benefit from those protected works, is quite different from the mere provision of physical facilities.
The second question for the Court was whether the streaming of unlicensed content was excused from infringement under the temporary copies exemption within Article 5(1) of the Directive.
The Court noted that the conditions in Article 5(1) are cumulative in the sense that non-compliance with any one of them will lead to the act of reproduction not being exempted, and must be interpreted strictly. The Court concluded that "Article 5(1) and (5) of Directive 2001/29 must be interpreted as meaning that acts of temporary reproduction, on an multimedia player, such as that at issue in the main proceedings, of a copyright-protected work obtained by streaming from a website belonging to a third party offering that work without the consent of the copyright holder does not satisfy the conditions set out in those provisions".
It therefore now appears that liability for streaming content online without the permission of the copyright holder is comparable to that of unlawful downloads. The decision is a significant development for copyright holders clarifying infringement by both the end user of the streamed content as well as at its source. In addition to possibly putting many users off the use of such streaming devices, it may allow rights holders to identify infringement within the jurisdiction for the purpose of seeking an interdict (injunction).
Leaving the EU will bring an end to the jurisdiction of the CJEU in the UK. However, the Great Repeal Bill White Paper explains that the UK government intend to convert the body of existing EU law into domestic law. In particular, the Bill will provide that historic CJEU case law be given the same binding, or precedent, status in our courts as decisions of our own Supreme Court.