ECJ confirms that the sale of a streaming player giving access to websites with illegal content, as well as streaming such illegal content, may be a copyright infringement.

In its decision C‑527/15 , handed down on 26 April, the ECJ ruled that the sale of a multimedia player containing (in its pre-installed software) hyperlinks to websites — that are freely accessible to the public — on which copyright-protected works have been made available to the public without the consent of the right holders, constitutes a 'communication to the public' within the meaning of Article 3 of Directive 2001/29/EC. In addition, the ECJ clarifies that the (temporary) copies of such illegal content made by in the course of the streaming player are not covered by the ''caching' exemption pursuant to Article 5 (1) of the InfoSoc Directive 2001/29/EC. Given that the ECJ had already in the past (see ACI Adam ) concluded that the private copying exception within Article 5(2) of the InfoSoc Directive does not encompass reproductions from unlicensed sources, it seems to be clear now that streaming copyrighted content from illegal sources is not covered by any applicable exemptions under the InfoSoc Directive.

The decision is important for rights holders: It essentially clarifies that streaming copyrighted content from illegal sources – as well as the sale of technology that is marketed specifically for such purposes – is unlawful, at least in circumstances when the seller or user knew or ought to have known that the content in question has been made available without the rights holders' consent. In pratice, this will most likely be the case whenever the content in question is hosted on websites that are known as illegal streaming portals.

See the court's press release at http://curia.europa.eu/jcms/upload/docs/application/pdf/2017-04/cp170040en.pdf