In its ruling of 26.04.2017, the ECJ (case reference: C-527/15) once again ruled on the controversial issue of streaming.

The sale of multimedia media players that can stream films from the internet could constitute copyright infringement. At the same time, the temporary reproduction of a copyrighted work on this media player through streaming is not exempt from the reproduction right.

In other words: streaming alone can constitute copyright infringement. The ECJ provides guidance on the requirements.

Media player facilitates access to illegal movie offers

A Dutch company sold various multimedia media players on the Internet under the name “filmspeler”. These devices made it possible to “stream” image or sound signals from the Internet to a television. Software – in the form of an add-on – was also installed on the media player from the factory, enabling the user to play films from streaming sites. However, the user could not only access films from legal streaming sites, but also films that had been illegally uploaded to the Internet.

The company’s advertising for the media player was designed accordingly. Buyers would “never have to pay for films, series and sport again” and “never have to go to the movies again”. Netflix is now also “a thing of the past”. The main function of the player is therefore the use of illegal streaming sites.

ECJ: “Communication to the public” to be interpreted broadly

The distribution of such a device is unlawful and must be prohibited. The broad interpretation of the term “communication to the public” (within the meaning of Directive 2001/29/EC) would also include the distribution of a media player.

Such a broad interpretation is necessary precisely in order to guarantee the high level of protection of authors required by the Directive.

The use of streaming sites can also constitute copyright infringement

However, in its decision, the ECJ did not only comment on the distribution of such media players. The use of the devices for streaming could also constitute a copyright infringement. In principle, EU law provides for an exception that allows the making of an unavoidable copy (Art. 5 of Directive 2001/29/EC).

However, this exception does not apply if the streaming user accesses the films voluntarily and is aware that the film was posted online without the author’s consent. Especially in the case of brand new films that are currently being shown in cinemas, knowledge of the illegality can be assumed.

Warning letters against users of streaming sites still difficult

Even though streaming films was previously considered a gray area, rights holders should be pleased with the ruling. This is because the ECJ’s ruling should make it illegal to access content from illegal sources on the internet via streaming. This means that rights holders could also take action against the users of illegal streaming sites and issue them with warnings or sue them. The reasons for the ruling are still pending, meaning that a more in-depth discussion is not yet possible at this time.

In practice, however, a “wave of warnings” is not to be expected. The identifying IP address is initially only known to the website operator, who is often based abroad. It is therefore not the legal gray area that prevents authors and rights holders from taking action against users of illegal streams, but rather the technical difficulty of identifying them.