Extension of the Public Communication of Works

9.07.2017 r.

Around two weeks ago, the Court of Justice of the European Union (hereinafter: CJEU) issued a decision in case C-610/15, where the parties were Stichting Brain – a Dutch foundation fighting fraud in the area of intellectual property and Ziggo BV – a supplier of Internet services.

The case referred to the Pirate Bay site (hereinafter: TPB). Stichting Brain filed a petition to the court to order the largest Internet suppliers to block access to TPB. When the case was finally submitted to the Dutch Supreme Court, it sent the prejudicial questions to the CJEU.

The operation of TPB does not consist in the distribution of pirated work, but only the so-called torrent files. Exchange of films or music with the use of such files takes place directly between the users’ computers, therefore without the above-mentioned files, the exchange would not have been possible. Thence, does making a torrent file available mean violation of copyright? The CJEU decided that this was the case. Without it, the exchange of files among users would not have been possible and, in any case, it would have been much more difficult.

The decision is very significant also for the administrators of Polish websites with torrents. In line with the decision, by enabling the searching of torrent files, they make works protected by copyright publicly available. What is more, they earn income from it. The Court decided that profits from advertisements shown to the users of TPB constituted such income.

Janusz Piotr Kolczyński, attorney-at-law, was asked to comment on the decision and its consequences. In his statement, the attorney indicated that the increasingly rigorous decisions of the CJEU prepare grounds for the legislation changes in the EU, which are aimed at introducing, to a degree via the back-door, an obligation of monitoring the content made available by the users of large internet sites. In the evaluation of Mr. Kolczyński, this is a dangerous activity, as it may lead to the dilution of the institution of the right to public communication via its extension beyond the stipulation of the directive on copyright in the information society of 2001. With respect to the absence of harmonisation of the European law in the area of the so-called indirect violation of copyright, the EU legislator and the Court are trying to shift the burden of liability for violation of copyright directly to Internet sites. They would be responsible not only indirectly, but also directly, for the potential violations of copyright. This happens in a manner which - according to the attorney – loosens the structure of the right to public communication.

Source: Gazeta Prawna 19.06.2017.