The Treaty of Lisbon came into force on 1 December 2009, the European Union now has legal personality and has acquired the competencies previously conferred on the European Community. Community law has, therefore, become European Union law. The present case is relating to the decision on the sale of devices that make piracy easier is a violation of copyrights.
Brief Facts: The fact of the case was regarding the multimedia player “films peeler”, which was the interface between the source of the audiovisual device and television screen. This player was allowing the user to watch the content without the copyright holder permission for some content. The European Court of Justice, in this case, has recently ruled that devices with pre-installed software that make it easier to stream pirated content may violate a European Union (EU) Copyright Protection directive (“Directive”).
The article 23 of the said directive provides to harmonise the authors right to communication to the public. Article 3 provides that the member states shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
In this case the court determined that the sale of such multimedia players, often including popular so-called “streaming sticks,” constitute a “communication to the public” that falls within the definition of the statute, which is prohibited. Because the purpose of the directive was to create a high level of protection for authors, the court held that “communication to the public” must be interpreted broadly. The court found that even temporary acts of reproduction of copyrighted work by streaming on a third party website that offers the work without the copyright holder’s consent cannot be exempted from the right of reproduction. It was argued selling of the multi-media player was considered as a breach of communication to the public.
Under the Directive, an act of reproduction is only exempt from the right of reproduction if it satisfies five conditions, namely:
(1) the act is temporary,
(2) it is transient or incidental,
(3) it is an integral and technical part of a technological process,
(4) the sole purpose of that process is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or subject matter, and
(5) that act does not have any independent economic significance. Those conditions are cumulative in the sense that non-compliance with one of them will lead to the act of reproduction not being exempted. Furthermore, the exemption is to be applied only in certain special cases, which do not impair the normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the right holder.
1. Court of Justice of European Union [Press Release 40/17]