CJEU Year end Review: Copyright 2017

As the end draws to a close, our Ashley Cohen provides a rundown of some of the most important CJEU cases of 2017.

EU Court of Justice issued a preliminary ruling in Case C-177/16, Autortiesību un komunicēšanās konsultāciju aģentūra/Latvijas Autoru apvienība v.Konkurences padome,

This judgment was for a preliminary ruling, concerning the interpretation of point (a) of the second paragraph of Article 102 TFEU. Basically, The Latvian Supreme Court wanted to know if a comparison with just two neighbouring countries and adjusted EU average rates was enough to deem prices excessive.

The AKKA/LAA, a collective management organisation handling copyright for musical works, is the only entity authorised in Latvia to issue, for consideration, licences for the public performance of musical works in respect of which it manages the copyright. It collects the fees from which Latvian copyright holders are remunerated as well as, through contracts concluded with foreign collecting societies, those from which foreign copyright holders are remunerated. Holders of its licences include shops and service centres, as users of works protected by copyright and related rights.

In 2013, the Latvian Competition Council fined AKKA-LAA for abusing its dominance by imposing too high rates for its services. The Competition Council found that AKK-LAA’s rates were at least twice as high as those applied in Estonia and Lithuania to stores of comparable size. The rates were also 50% to 100% above the average of other twenty EU countries.

The ECJ found that there is no single method to investigate rights and that Competition authorities enjoy a “Certain Margin of Manoeuvre.” In his opinion, AG Wahl suggested that, to avoid false incrimination, competition authorities should always examine a price “by combining several methods.” This judgments seems to lower the burden of proof for competition authorities.

CJEU: ITV v TVCatchup, Court of Justice of the European Communities, C-275/15, 1 March 2017

Here the UK court is asking the CJEU whether Article 9 of the InfoSoc Directive – specifically the concept of ‘access to cable of broadcasting services’ – must be interpreted as covering and permitting national legislation which provides that copyright is not infringed in the case of the immediate retransmission by cable, including, where relevant, via the internet.

The CJEU held that Article 9, particularly the concept of ‘access to cable of broadcasting services’, must be interpreted as not covering or permitting national legislation which provides that copyright is not infringed in the case of the immediate retransmission by cable of works broadcast on television channels subject to public service obligations.

Case C-610/15, Stichting Brein v Ziggo

Stichting Brein is an anti-piracy organization and it applied to the Dutch courts for an injunction against internet access providers Ziggo and XS4ALL, that would order them to block access to The Pirate Bay website for their customers. The Dutch Supreme Court noted that the permissibility of injunctions of this kind is dependent on the correct interpretation of Article 8(3) of the InfoSoc Directive. Thus, the court applied to the ECJ to ask whether this activity amounts to a communication to the public and thus to copyright infringement. The Court applied the following test to determine if something is a communication to the public: a) an ‘act of communication’ of a work and b) the communication of that work to a ‘public’.

The Court concluded that peer-to-peer file-sharing website The Pirate Bay communicates works to the public.

European Union: Hotel Edelweiss, European Court of Justice (ECJ), C-641/15, 16 February 2017

This case stems from litigation between an Austrian collecting society and a Hotel in Grossarl. The hotel refused to pay relevant fees pursuant to Art. 8(3) of the Rental and Lending Rights Directive. According to the hotel operator, hotel rooms are not places accessible to the public against payment of an entrance fee within the meaning of the provisions transposing Article 8(3) of the Rental and Lending Rights Directive. They claimed the notion of “places accessible to the public against payment of an entrance fee” does not apply to hotel rooms.

The CJEU held that the price of a hotel room should not be regarded as an ‘entrance fee’ in relation to the exclusive right of broadcasters provided for in Article 8(3) of Directive 2006/115, as the communication of television and radio broadcasts. In addition, television sets installed in hotel rooms do not constitute a communication made in a place accessible to the public against payment of an entrance fee.

Case C-265/16, VCAST

The main question posed to the CJEU in Case C-265/16, VCAST, was “whether the private copying exception covers the services of an online platform that allows users to store copies of free-to-air TV programmes in private cloud storage spaces.”

The way the service, VCAST, works is it allows a customer to record a TV from any country, then store it in a cloud which the customer can then sign into and select the programme or time slot to watch at any time. The cloud storage was owned by the customer but provided for by a third party.

The Court found that this service constitute a communication to the public under Article 3 of the InfoSoc Directive. The used the “specific technical means” under the ITV Broadcasting case. Then the Court found that the two acts amounted to a “Communications to different public” and that as a result of that, plus the specific technical means criteria, under such a communication, VCAST would need separate authorization from the rightholder. The Court did not assess the three-step test for copyright infringement based on these findings.

The VCAST judgment opens the door for the private copying exception to apply to copies made by individual customers of the service in cases where the work is lawfully made available or the cloud service is predominantly characterised by the reproduction functionality.