02 August 2017

The court has found that a media player with pre-installed add-ons containing hyperlinks to websites which provide access to copyright-protected content constitutes a communication to the public under Article 3(1) of the Information Society Directive (2001/29/EC).

The court looked at the “indispensable” role of the intervener in the communication. Instead of considering whether access to the content was “impossible” without the intervention, the court asked whether their role was “essential”; a lower standard. In consideration of this, an assessment was made as to how the intervener’s actions enabled access to the content. In Filmspeler, access to the works was not impossible without the provision of the add-ons but it was made much easier.

Previous decisions in Svensson and GS Media consider the direct provision of hyperlinks. In this case, Filmspeler sold a media player on which hyperlinks had been made available. This broadly widens the court's scope to consider preparatory measures as a “communication to the public”. It also blurs the line between the provision of a facility which could enable communication and the direct provision of the communication itself.

It is hoped that the demonstration that a range of actors, other than the person directly making available the infringing content, could be held responsible might act as a deterrent to prevent engagement in any part of a chain which involves potentially infringing activities.

It won’t be long before we get to read another CJEU judgment exploring the boundaries of the right to “communicate to the public”; its decision in relation to "The Pirate Bay" website is expected very soon.

If you would like to discuss any of the issues raised in this article or would like further information, please contact Jeremy Dickerson or your usual contact in the intellectual property team.

Key contact

Jeremy Dickerson

Jeremy Dickerson Partner

  • Head of International 
  • Head of Intellectual Property, Media and Sport
  • Defamation and Reputation Management

Subscribe to news and insight

Intellectual Property and Media

Our market-leading intellectual property lawyers have built an international reputation for their formidable knowledge of IP law. We also provide specialist advice to media sector clients.
View expertise