• ECJ: 'The Pirate Bay' Communicates Protected Works to the Public
  • July 24, 2017 | Author: Viola Bensinger
  • Law Firm: Greenberg Traurig, LLP - Berlin Office
  • On June 14, the European Court of Justice (ECJ) found that the making available and management of an online sharing platform constitutes an act of communication to the public under European copyright rules.

    Stichting Brein, a Dutch foundation located in the Netherlands and responsible for protecting the interests of copyright holders, sought an order demanding two internet access providers to block domain names and IP addresses belonging to the online file sharing platform ‘The Pirate Bay’. ‘The Pirate Bay’ allows its users to upload and share files in segments (known as ‘torrents’) directly from their computers, and a substantial number of the users of Pirate Bay partake in file-sharing of copyright-protected works occurring on the platform. The case was brought to the Supreme Court of the Netherlands upon appeal and referred to the ECJ, which was asked whether or not ‘The Pirate Bay’ communicates works to the public within the meaning of Article 3 (1) of Directive 2001/29 (InfoSoc-Directive).

    The court held that regardless of the fact that the copyright protected works were uploaded on ‘The Pirate Bay’ by its users, the site's operators play a crucial role in facilitating public access to the works. By categorizing the works based upon numerous factors, the site allows for easy accessibility, and its operators expressly display their intention of making protected works available to users. The court also noted that the site provided this service for profit, generating substantial advertising revenues, and stressed that the works are being communicated to the public in violation of their copyright protection.