Making available a “Bit Torrent” based management platform on which users can go online and share or download protected works, should be considered as “an act of communication” to the public for protected works under the terms of the Copyright directive (2001/29/EC). These platforms can therefore be considered as a breach of copyright if the works are exchanged without the consent of the rights holders. Even if the works in question are put on-line by the platform users, their operators play an undeniable role in making these works available.
This is the decision made on Wednesday 14 June by the European Court of Justice (C-610/15) in response to the Dutch Supreme Court, which requested an interpretation from it on the above-mentioned directive. The Dutch court had been requested to give its verdict on the appeal launched by an organisation defending the interests of copyright holders, Stichting Brein.
The latter had brought proceedings before the courts in the Netherlands seeking an order that would require Ziggo and XS4ALL to block the domain names and IP addresses of ‘The Pirate Bay’. This platform allows users to share and upload, in segments (‘torrents’), works present on their computers, which the rightsholders have not given consent to share to the operators or users of that platform.
The Dutch Supreme Court wishes to ascertain whether a sharing platform such as ‘The Pirate Bay’ is making a ‘communication to the public’ within the meaning of the directive by making an infrastructure available to users that facilitates this exchange, although no protected work is present on the site itself.
The Court of Justice replied in the affirmative and therefore follows the reasons developed in the conclusions of the Advocate General Maciej Szpurnar (see EUROPE 11721). It indicates that in any act involving users operating a platform – particularly the making available online of protected works – is likely to constitute “an act of communication” under the terms of the directive. The platform operators also play an indisputable role in the broadcasting of protected works by making a comprehensive tool available to users so that they can have access to works in the place and at the moment they individually choose.
The platform operators index the bit torrents (files made up of fragments that are assembled and which enable full downloading to take place) so that the works sent by these files can be easily located or downloaded by users. They also provide a search engine, categories based on the kind of work, their genre or popularity. The operators also ensure site maintenance by removing obsolete or erroneous bit torrents when actively screening certain content.
The Court also indicates that the operators have been informed that their platforms provide protected works without the consent of the rights holders and clearly demonstrate their wish to broadcast these works on the forums and blogs available on the platform used by millions of people and also by encouraging the users to make copies.
Finally, the operators also make a considerable profit from managing the platforms and the revenues from advertising. (Original version in French by Francesco Gariazzo)