Copyright holders are claiming a victory in the recent decision of the Court of Justice of the European Union (‘CJEU’) in Case C-527/15, Stitchting Brein v Jack Frederik Wullems (also t/a Filmspeler) (‘Filmspeler’) – the Court having adopted a more relaxed approach to determining which parties may be held liable for infringements, and some say a looser interpretation of infringement to include streaming. The Court concluded that a device specifically adapted to enable access to unauthorised content on a streamed basis is an enabling facility, and enables a communication to the public. Thereby, it is a breach of the law.
The case centred on a multimedia player device sold by a Defendant from the Netherlands (Wullems/Filmspeler) under the name ‘filmspeler.’ The device contained certain pre-installed open source streaming software, together with apps freely available on the Internet, some of which serve to link specifically to websites from which users can stream unauthorised copyright protected content (a feature highlighted by the Defendant in his advertising of the device).
The Plaintiff sued the Defendant in the Netherlands, seeking to prevent the Defendant from marketing or selling the device on the basis that the device was specifically adapted to infringe the Plaintiff’s exclusive right of ‘communication to the public’ of the Plaintiff’s copyright works,
in accordance with Article 3 of the InfoSoc Directive. The Defendant denied that, and additionally submitted before the Court of the Netherlands that streaming unauthorised content was itself covered by an exception to copyright infringement under Article 5 of the InfoSoc Directive.
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