NEWS
Category: LEGAL NEWS
New ECJ decision: Streaming – illegal copyright infringement?
From a technical point of view is, nowadays, easier than ever before to stream the latest movies, series or even football matches free of charge due to multitude of offers, and also under the Austrian legal situation due to § 41a of the Copyright Act this is currently permissible. Will this change because of the decision of the ECJ in April 2017?
This decision is based on a situation in which a Dutch provider sold a TV mediaplayer on various websites with which movies could be streamed directly on the television. Using a special software, add-ons from third parties were installed on this mediaplayer, among others. Some of these add-ons allowed users the direct access to copyrighted works without the permission of the copyright owner. The Dutch provider promoted the product, in particular, with the fact that even restricted Internet content can be used free of charge via a TV mediaplayer. The Dutch copyright association Brein accused the supplier of omission.
The ECJ evaluated the use as well as the sale of TV mediaplayers, with which the illegally published works on the Internet are made accessible as a „public reproduction“ of the protected works, which are reserved in principle to the rightholder. Consequently, the sale of such TV mediaplayers, which also allow access to illegal streaming sites, is a copyright infringement. The ECJ, however, continued in its decision stating in particular that even the acquirer of such a mediaplayer „provides access to a free and unauthorized offer of protected works on a voluntary basis and in the knowledge of the situation“ and consequently can itself commit a copyright infringement. In particular, it should be taken into account whether the acquirer was aware that the TV mediaplayer and the pre-installed ad-sites had access to illegal streaming pages, which, according to the ECJ, would have been affirmed in the case of the active advertising.
The ECJ’s statement that the sale of the mediaplayer „normally leads to a reduction in the legal transactions in connection with these protected works“ can, in principle, also be extended to mere streaming, i.e. the temporary storage of Internet content. In this context, the ECJ emphasized that the exception of Art 5 of Directive 2001/29 (the permissibility of short-term duplications) can only be applied in those cases „in which the normal use of the work or other protection is not impaired and the legitimate interest of the right holder will not be unreasonably violated.“ The conditions required for this exception were not met in the concrete case because no consent was granted by the authors and the „main incentive of the media player for the potential buyers in the pre-installation of the add-ons in question.“
As already stated, streaming according to Austrian law is currently permissible due to § 41a of the Copyright Act. Since the ECJ has now not declared the exception of Art 5 of Directive 2001/29 applicable to illegal streams, it remains to be seen whether the legal situation in Austria will change as well. A corresponding decision of the Austrian Supreme Court would bring clarity. In our view, in any case, it is then problematic when the deliberately illegal sites will be streamed, which can probably be assumed to be unequivocal if, for instance, cinema movies can be retrieved before the first broadcast or during this time already on different sites.
