Luxembourg: Facilitating sharing of copyrighted works may constitute infringement

About this case:

• Judgment:
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Ziggo and XS4ALL are internet access providers. A significant number of their subscribers use the online sharing platform ‘The Pirate Bay’. This platform allows users to share and upload, in segments (‘torrents’), works present on their computers. The files in question are, for the most part, copyright-protected works in respect of which the rightholders have not given the operators or users of that platform consent to share those works.

Stichting Brein, a Netherlands foundation which safeguards the interests of copyright holders, has brought proceedings before the courts in the Netherlands seeking an order that would require Ziggo and XS4ALL to block the domain names and IP addresses of ‘The Pirate Bay’.

The Hoge Raad der Nederlanden (Supreme Court of the Netherlands), before which the dispute has been brought, has decided to refer questions to the Court of Justice on the interpretation of the EU Copyright Directive. The Hoge Raad wishes, in essence, to ascertain whether a sharing platform such as ‘The Pirate Bay’ is making a ‘communication to the public’ within the meaning of the directive and may therefore be infringing copyright.

In its judgment, the court held that the making available and management of an online sharing platform must be considered to be an act of communication for the purposes of the directive.

The court first drew attention to its previous caselaw from which it can be inferred that, as a rule, any act by which a user, with full knowledge of the relevant facts, provides its clients with access to protected works is liable to constitute an ‘act of communication’ for the purposes of the directive.

In the present case, it is common ground that copyright-protected works are, through ‘The Pirate Bay’, 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.

Whilst it accepts that the works in question are placed online by the users, the court highlighted the fact that the operators of the platform play an essential role in making those works available. In that context, the court noted that the operators of the platform index the torrent files so that the works to which those files refer can be easily located and downloaded by users. ‘The Pirate Bay’ also offers — in addition to a search engine — categories based on the type of the works, their genre or their popularity. Furthermore, the operators delete obsolete or faulty torrent files and actively filter some content.

The court also highlighted that the protected works in question are in fact communicated to a public.

Indeed, a large number of Ziggo’s and XS4ALL’s subscribers have downloaded media files using ‘The Pirate Bay’. It is also clear from the observations submitted to the court that the platform is used by a significant number of persons (reference is made on the online sharing platform to several tens of millions of users).

Moreover, the operators of ‘The Pirate Bay’ have been informed that their platform provides access to copyright-protected works published without the authorisation of the rightholders. In addition, the same operators expressly display, on blogs and forums accessible on that platform, their intention of making protected works available to users, and encourage the latter to make copies of those works. In any event, it is clear from the Hoge Raad’s decision that the operators of ‘The Pirate Bay’ cannot be unaware that this platform provides access to works published without the consent of the rightholders.

Lastly, the making available and management of an online sharing platform, such as ‘The Pirate Bay’, is carried out with the purpose of obtaining a profit, it being clear from the observations submitted to the court that that platform generates considerable advertising revenues.