- The Filmspeler case
On 26 April 2017, the European Court of Justice (“CJEU”) rendered its decision in case C-527/15, Stichting Brein v Wullems t/a Filmspeler. CJEU was requested to establish whether it constitutes a communication to the public with the sale of a product (a multimedia player named ‘Filmspeler’) in which the seller installed certain add-ons hyperlinking to websites on which copyright-protected works were made directly available to the public without the prior authorization of the rights holder.
The CJEU held that in order to establish whether there is “a communication to the public” it is necessary:
- 1) an act of communication which occurs when an user “intervenes, in full knowledge of the consequences of his action, to give access to a protected work to his customers and does so, in particular, where, in the absence of that intervention, his customers would not be able to enjoy the broadcast of the work”.
- 2) that the communication be directed to “a public that was not already taken into account by the copyright holders when they authorised the initial communication to the public of their work”. More specifically, in order to establish if a communication aimed to the public, the CJEU evaluates: i) whether the seller “knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet”; ii) whether the link “allows users of the website on which it is posted to circumvent the restrictions put in place by the site where the protected work is posted in order to restrict the public’s access to its own subscribers”; iii) whether “the posting of the link is carried out for profit”.
First, the CJEU found that the seller’s conduct was an act of communication, as the seller was aware that the add-ons installed in the multimedia player would have allowed the purchasers to illegally access copyright-protected works online. A such communication was also considered “public” because the sales were made for profit, and the seller had full knowledge of the fact that the hyperlinks provided allowed the access to copyright-protected works online (without rights holder’s authorization).
In the light of the recent CJEU judgment, rights holders can now prevent the sale of a physical device which facilitates access to unlawful online streams of copyright works, even if the seller of the device is not responsible for the existence of the unlawful streams and does not initiate any unlawful transmission.
- A partial abandonment of the SIAE monopoly in Italy.
The Italian Legislative Decree no. 35 of 15 March 2017 entered into force on 11 April 2017 (Decree 35/2017). The decree applied the European Parliament Directive 2014/26/UE on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market. More specifically, it provides the requirements that collective management organizations and independent management entities must meet for managing authors’ copyrights and related rights, as well as granting multi-territorial licenses. These requirements include:
- the purpose of these entities must be solely or mainly copyrights (or rights related thereto) management on behalf of more than one holder of such rights to the collective advantage thereof
- as to the ownership, the entities must be owned or controlled by their own members or non-profit making
- the management of the rights of parties which are not members of the management entities is allowed, provided that “there is a direct legal relationship deriving from the law or from a transfer of rights, from a license or from any other contractual agreement”
- it is also required that these entities must also operate through “objective, transparent and non-discriminatory criteria”.
However, the decree missed an opportunity to end the monopoly of the Italian copyright collecting agency (SIAE), allowing authors to entrust only their rights’ management to other entities. According to Article 4 of the Decree 35/2017 “the rights holders may entrust the management of their rights (which include both copyright and related rights) […] to a collective management organization or to an independent management entity, irrespective of the Country of the European Union, of nationality, residence or establishment of the collective management organization or of the independent management entity or of the rights holder, except as provided for by Article no. 180 of the Italian Law of April 22, 1941, no. 633 (Italian Copyright Law, ICL), with exclusive reference to the activity of intermediation of the authors’ copyright”. As such, article no. 180 of ICL establishes that “the right to act as an intermediary in any manner […] shall belong exclusively to the SIAE […]”. Therefore, authors may now entrust their management rights to entities besides SIAE, but the latter keeps its monopoly with regard to the copyrights’ intermediation which only SIAE can operate (other entities will be able to act as intermediary with exclusive reference to related rights).
 Moreover, the CJEU specified that, notwithstanding the fact that according to Recital 27 of Directive 2001/29/EC supplying physical facilities for enabling or making a communication is not an ‘act of communication’, an act of communication however occurs if such physical facilities allow their users to access copyrightprotected works.
Compliments of AEM Carnelutti , a member of the EACCNY