Is streaming of copyrighted content from unauthorized sources legal? CJEU asked to rule on the lawfulness of temporary copies made by end users
By Martin Miernicki
On October 5, 2015, a Dutch court (Rechtbank Midden-Nederland) lodged a request for a preliminary ruling in Stichting Brein v. Wullems (C-527/15). The case will clarify whether end users infringe the exclusive reproduction right when copyrighted content which was uploaded to third-party websites, without the right holder’s authorization, is streamed online.
The questions referred
The national court asked the CJEU to give its opinion on the following questions (paraphrased form):
Does an end user who makes temporary reproductions during the streaming of a copyrighted work from a third-party website carry out an act which is not a “lawful use” within the meaning of article 5(1)(b) of the Copyright Directive, if that work is offered without the right holder’s authorization?
If the answer to the previous question is in the negative, is such an act contrary to the “three-step test” referred to in article 5(5) of the Copyright Directive?
Case law: status quo
The CJEU has repeatedly dealt with temporary reproductions and streaming in connection with article 5(1), (5) of the Copyright Directive. Relevant case law includes Infopaq Int’l v. Danske Dagblades Forening (C-5/08, “Infopaq I”), Football Association Premier League v. Media Protection Services (C-403/08 & C-429/08), Infopaq Int’l v. Danske Dagblades Forening (C-302/10, “Infopaq II”) and Public Relations Consultants Ass’n v. Newspaper Licensing Agency (C-360/13). While these judgement address a number of questions related to the interpretation of article 5 of the Copyright Directive, neither the concept of “lawful use” nor the role of the three-step test has been clarified with regard to streaming from unauthorized sources.
What can be expected?
The judgement will shed light on the legal status of acts very common for many internet users, but will also be relevant for online platforms offering streaming services. However, even if streaming of unauthorized content is deemed copyright infringement, right holders will suffer enforcement problems. On the other hand, if no infringement is found, right holders will have to consider how to make profits from their works in the online environment. It is possible that the CJEU will reach a compromise, e.g. permitting the streaming of protected content while requiring that right holders receive some sort of remuneration (e.g. through a levy), or holding that streaming is only allowed in situations where it is not apparent that the streamed content was uploaded without the right holder’s authorization. It is hard to predict the decision of the court, especially in light of its rather ambiguous statements as regards the relationship between article 5(1) and the three-step test (Infopaq II, C-302/10, paras 55-57 and Public Relations Consultants Ass’n, C-360/13 paras 53-63).
It will also be interesting to see whether the CJEU’s rulings on the requirement of a lawful source in connection with the “private copying exception” (ACI Adam v. Stichting de Thuiskopie, C-435/12; Copydan Båndkopi v. Nokia Danmark, C-463/12), referred to in article 5(2)(b) of the Copyright Directive, influence its assessment of the case at hand.
 The Dutch court furthermore asks the CJEU to interpret the concept of “communication to the public”. These questions are not directly relevant for acts carried out by end users and are therefore omitted.