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'Sharing platforms' can be held liable for copyright infringement, rules CJEU

Online platforms that allow users to search for and share copyright-infringing content uploaded to the internet by others can be held liable for copyright infringement, according to a new ruling by the EU's highest court.15 Jun 2017

In its judgment, the Court of Justice of the EU (CJEU) confirmed that "the making available and management, on the internet, of a sharing platform which, by means of indexation of metadata relating to protected works and the provision of a search engine, allows users of that platform to locate those works and to share them in the context of a peer-to-peer network" should be considered as a 'communication to the public'.

Under EU copyright laws copyright holders have the exclusive right to control any "communication to the public of their works".

The case before the CJEU concerned a dispute between Dutch copyright industry body Stichting Brein and internet service providers (ISPs) Ziggo and XS4ALL Internet. Stichting Brein is seeking a court order in the Netherlands to force the ISPs to block their customers' access to online sharing platform The Pirate Bay (TPB).

The Pirate Bay has previously been the subject of a number of legal cases brought around the world by copyright holders, including in the UK.

In 2012, the High Court in London ordered a number of UK ISPs to block access to The Pirate Bay website at the request of major music labels, after previously finding that the then operators of the site and its users were guilty of infringing the copyright of the rights holders. That ruling has prompted other website blocking orders to be issued in a number of other cases involving other online platforms.

The CJEU's latest ruling has provided further clarity over the scope of EU copyright laws and their application to online platforms, where the technical means by way some platforms allow users to share and access content has been evolving.

"It is not disputed that copyright-protected works are, by means of the online sharing platform TPB, made available to the users of that platform in such a way that they may access those works from wherever and whenever they individually choose," the CJEU said.

"It is true … that the works thus made available to the users of the online sharing platform TPB have been placed online on that platform not by the platform operators but by its users. However, the fact remains that those operators, by making available and managing an online sharing platform such as [TPB], intervene, with full knowledge of the consequences of their conduct, to provide access to protected works, by indexing on that platform torrent files which allow users of the platform to locate those works and to share them within the context of a peer-to-peer network," the Court said.

"In this respect … without the aforementioned operators making such a platform available and managing it, the works could not be shared by the users or, at the very least, sharing them on the internet would prove to be more complex," it said. "The view must therefore be taken that the operators of the online sharing platform TPB, by making that platform available and managing it, provide their users with access to the works concerned. They can therefore be regarded as playing an essential role in making the works in question available."

Under EU copyright laws, "the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication", for the purposes of establishing whether a communication to the public has occurred. The CJEU said, though, that the activities carried out by the operators of TPB could not be characterised in this way.

"It is clear from the order for reference that that platform indexes torrent files in such a way that the works to which the torrent files refer may be easily located and downloaded by the users of that sharing platform," the CJEU said.

"Moreover … in addition to a search engine, the online sharing platform TPB offers an index classifying the works under different categories, based on the type of the works, their genre or their popularity, within which the works made available are divided, with the platform’s operators checking to ensure that a work has been placed in the appropriate category. In addition, those operators delete obsolete or faulty torrent files and actively filter some content," it said.

As well as satisfying itself that TPB operators were engaged in acts of communicating copyright-infringing material, the CJEU confirmed that those works were communicated to a public that would not otherwise access the material for the purpose of profit.