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EU court ruling could help in crackdown on sale of modified TV set-top boxes, says expert

A new ruling issued by the EU's highest court could assist copyright holders in clamping down on the sale of modified TV set-top boxes that allow users to access copyright-infringing content, an intellectual property law expert has said.27 Apr 2017

Iain Connor of Pinsent Masons, the law firm behind Out-Law.com, said the findings of the Court of Justice of EU (CJEU) could be relevant to cases brought by rights holders against businesses that sell modified TV set-top boxes.

On Wednesday, the CJEU ruled that businesses that sell specially-adapted multimedia players that allow users to watch copyright infringing content available online on their TVs could be found in breach of copyright laws even if they are not responsible for uploading or linking to the infringing material.

The EU court was ruling in a case referred to it from the Netherlands where a copyright association Stichting Brein has sued businessman Jack Wullems for copyright infringement. Wullems sold multimedia players that he adapted with software which allowed users to access for free links to copyright infringing content available on the internet that others provided and to play that content on their TVs.

The CJEU interpreted the sale of such devices as a 'communication to the public' of copyrighted works that rights holders had not consented to. It also found that there was no "lawful use" of the copyright works and that, as a result, the temporary reproduction of the works on the multimedia players were not justified under EU copyright laws.

The temporary copying of copyright works without the authorisation of rights holders is not considered to be an act of infringement in certain circumstances.

The CJEU reached its view after determining that the temporary copying on the multimedia "adversely affect[s] the normal exploitation of those works and causes unreasonable prejudice to the legitimate interests of the right holder".

Connor said: "The guidance from the CJEU should make ‘Kodi type’ convictions easier without the need for there to be a charge of conspiracy to defraud. In essence by providing guidance on what amounts to an ‘infringing copy’, the court is making it easier to explain to juries why making available content without the permission of the copyright holder is unlawful."

Earlier this year, Out-Law.com highlighted the challenges that prosecutors face in bringing copyright cases against suppliers of modified TV set-top boxes.

Late last year the Federation Against Copyright Theft (FACT) brought a successful private prosecution, in conjunction with the Premier League in England, against two men who supplied so-called 'IPTV' devices to pubs and consumers, following an investigation by the Police Intellectual Property Crime Unit at the City of London Police. The two men convicted in that case were convicted of conspiracy to defraud and did not face charges under UK copyright laws.

Ari Alabhai of QEB Hollis Whitman, a barrister who acted for FACT in the case, told Out-Law.com that it can be challenging to go into the detail of copyright law to prove a case before a jury and said a conspiracy to defraud charge is less complicated and easier for a jury to consider.

However, the conspiracy to defraud route is not available to prosecutors where only one person is engaged in an alleged offence. Alabhai said that, whilst UK copyright laws do provide alternative routes to prosecute, there are potential issues with the options.

The UK's Intellectual Property Office (IPO) earlier this year held a consultation on what it called 'illict IPTV streaming devices' in which it highlighted concerns from broadcasters and content providers about whether UK laws offer "sufficient tools to tackle" the "growing threat" of the sale and use of such devices.

The IPO's call for views closed on 7 April. It has not yet set out what actions, if any, it will take in response to the views gathered.