Did an EU court just rule that streaming is illegal? Yeah but No but Yeah but…
A dutch court asked the EU for clarification on a number of issues for a case against a man selling “fully loaded” Android TV boxes. The EU court has clarified that for the purposes of the particular case, “communication to the public” does include selling media devices that enable access to websites which stream copyright content, and that “copyright-protected work obtained by streaming from a website” does not qualify for allowed temporary reproduction under EU provisions.
It’s likely that this clarification will be used against other people caught selling “fully loaded” boxes and maybe people caught providing websites which stream content. The clarification in its current form can’t be used against end users.
The scales of justice keep swinging in case of “fully loaded” TV boxes. This time it’s a case in Holland against one Jack Frederik Wullems, a guy who was caught selling “fully loaded” Android TV boxes through his website, www.filmspeler.nl.
Mr Wullems was asked by Stichting Brein (the Netherlands foundation for the protection of the interests of copyright holders) to stop selling the boxes on his website on 22 May 2014. He didn’t. On 1 July 2014 Stichting Brein took the case to court.
Stichting Brein submitted that, by marketing the ‘filmspeler’ multimedia player, Mr Wullems made a ‘communication to the public’, in breach of Articles 1 and 12 of the (Dutch) Law on copyright and Articles 2, 6, 7a and 8 of the (Dutch) Law on neighbouring rights. Basically, he was advertising and supplying means to illegally access copyright material.
Mr Wullems submitted that streaming broadcasts of works protected by copyright from an illegal source was covered by the exception listed in Article 13a of the (Dutch) Law on copyright, which must be interpreted in the light of Article 5(1) of (EU) Directive 2001/29. Basically, he shouldn’t be done for supplying access to streaming sources as it’s exempt due to an EU Directive.
On 5 October 2015, the dutch court referred a number of questions to the EU regarding these two points.
On 26 April 2017, the EU court concluded its findings:
- that “communication to the public” in this instance does include the sale of media devices which allow access to copyright material, and
- that “copyright-protected work obtained by streaming from a website” is not exempt from dutch law due to any EU Directive.
1. 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 certain aspects of copyright and related rights in the information society, must be interpreted as covering the sale of a multimedia player, such as that at issue in the main proceedings, on which there are pre-installed add-ons, available on the internet, 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.
2. Article 5(1) and (5) of Directive 2001/29 must be interpreted as meaning that acts of temporary reproduction, on a 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.
Rather than the usual “court finds in favour of media conglomerates because they have all the money” scenario, this judgement was actually carefully considered and very detailed.
The judgement has now been referred back to the court in Holland, where the case will continue. It’s fairly likely though that Mr Wullems will be found guilty of selling the boxes in order to supply illegal access to copyright material.
What does this mean for the rest of us?
- It’s highly likely that this judgement will be used in other similar cases. If Mr Wullems is found guilty, cases against other “fully loaded” box sellers are bound to occur, and be successful.
- This judgement has clarified that either owning a website, or providing links to a website, which offers illegal access to copyright material, is not exempt from copyright law. This affects people who make third-party addons for media software.
- This judgement has also clarified that streaming copyright material without the consent of the copyright holder is not exempt from copyright law.
- It’s important to remember that this judgement is a clarification of EU Directives to be used in another case. That particular case has not been concluded yet.
- It’s also important to remember that the specific case in question is regarding someone selling a product which provides illegal access to content. It is not about an end-user. Because of this, no case will ever be brought against an end-user based purely on this EU clarification.
- It’s also important to remember that the laws are country-specific. The EU provides Directives which are advisory. Each country in the EU decides which Directives to adopt (in the respect that their own laws can over-rule EU Directives).
Let’s be honest. If you’re streaming copyright material without the authorisation of the copyright holder, you know it’s wrong. However, if you’re doing it just for personal use are you likely to get done for it? Most probably not.
Footnote: Kodi wasn’t mentioned in this particular EU clarification. However, the boxes sold by Mr Wullems did have Kodi and unofficial third-party addons installed on them (we know ‘cos we checked his website). They did not include IPTV.