In a judgment delivered on 14 June 2017 in Case C-610/15, Stichting Brein v. Ziggo BV and XS4ALL Internet BV (ECLI:EU:C:2017:456) on a reference for a preliminary ruling by the Supreme Court of the Netherlands, the Court of Justice of the European Union (the “ECJ”) held that the making available and management of an online sharing platform constitutes a ‘communication to the public’. By extent, making available and management of a peer-to-peer sharing platform could constitute a copyright infringement.
In the main proceedings before the Supreme Court of the Netherlands, a Dutch foundation which safeguards the interests of copyright holders, sued two internet providers to block the domain names and IP addresses of The Pirate Bay, an online platform indexing torrent files, so as to prevent use of the services of such providers in a manner which infringes copyright and related rights.
Torrent files refer to a central server which identifies the users available to share a particular torrent file, as well as the underlying media file. These torrent files were uploaded by the users to The Pirate Bay, which then proceeded to make them indexed and searchable, consequently making the works to which the torrent files link downloadable by the users.
According to the ECJ, the torrent files offered on The Pirate Bay mainly relate to copyright-protected works, without the relevant right-holders having given their consent to the operators or users of that platform to carry out the sharing of such works.
Pursuant to Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001, on the harmonisation of certain aspects of copyright and related rights in the information society, Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including making available to the public their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
The ECJ held that ‘communication to the public’ must be interpreted as covering the sharing platform operated by The Pirate Bay. The ECJ relied on the finding that the operators of The Pirate Bay intervene, having full knowledge of the consequences of their conduct, to provide access to protected works.
In the absence of making available and managing The Pirate Bay, the works could not be shared by the users or, at the very least, that sharing them on the internet would prove to be more complex and that such operators should be regarded as “playing an essential role in making the works in question available”.
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