Harmonisation of the laws of the Member States on intellectual property has been achieved mainly by means of Directive 93/98/EEC,  9 Council Directive of 29 October 1993 harmonizing the term of protection of copyright and certain related rights (OJ 1993 L 290, p. 9). subsequently amended and then repealed by Directive 2006/116/EC,  10 Directive of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (OJ 2006 L 372, p. 12). which codifies the earlier versions. The purpose of one of those amendments was to govern the protection of copyright and related rights in the so-called information society by means of Directive 2001/29.

In accordance with recital 23: ‘This Directive should harmonise further the author’s right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts.’

Recital 27 states: ‘The mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Directive.’

According to recital 31: ‘A fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject matter must be safeguarded. The existing exceptions and limitations to the rights as set out by the Member States have to be reassessed in the light of the new electronic environment. …’

Recital 33 reads: ‘The exclusive right of reproduction should be subject to an exception to allow certain acts of temporary reproduction, which are transient or incidental reproductions, forming an integral and essential part of a technological process and carried out for the sole purpose of enabling either efficient transmission in a network between third parties by an intermediary, or a lawful use of a work or other subject matter to be made. The acts of reproduction concerned should have no separate economic value on their own. To the extent that they meet these conditions, this exception should include acts which enable browsing as well as acts of caching to take place, including those which enable transmission systems to function efficiently, provided that the intermediary does not modify the information and does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information. A use should be considered lawful where it is authorised by the rightholder or not restricted by law.’

Under the heading ‘Reproduction right’, Article 2 provides: ‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:

(a)for authors, of their works;

…’

Under the heading ‘Right of communication to the public of works and right of making available to the public other subject matter’, Article 3(1) of Directive 2001/29 provides: ‘1.Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.’

Within the regulation of the ‘[e]xceptions and limitations’ (heading of the provision) to the reproduction right, the right of communication to the public and the distribution right, Article 5(1) and (5) is worded as follows: ‘1.Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable:

(a)a transmission in a network between third parties by an intermediary, or

(b)a lawful use

of a work or other subject matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2. … 5.The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder.’

The order for reference was received at the Registry of the Court of Justice on 5 October 2015.

The parties to the main proceedings, the French, Italian, Portuguese and Spanish Governments and the European Commission lodged written observations within the period stipulated in the second paragraph of Article 23 of the Statute of the Court of Justice.

At the hearing, held on 29 September 2016, oral argument was presented by the representatives of Stichting Brein, Mr Wullems, the Spanish Government and the European Commission.

I believe that, in view of their close connection, the first two questions should be examined together. The reply to both is, in large part, influenced by certain factors that delimit the subject matter of the dispute as follows: (a) Mr Wullems sells (for profit) a multimedia player in which he has installed hyperlinks to websites offering unrestricted access, free of charge, to digital content protected by copyright;  30 The same unrestricted, free-of-charge access is provided to other content which has not been authorised for distribution to the public by the person who originally retransmitted it either, but which is not protected by copyright in the strict sense. That is the case, for example, of the live retransmission of certain sporting events which are not by their nature original works for the purposes of Directive 2001/29 (although reproduction rights awarded through exclusive licences to certain television operators may come under the protection of other provisions). The Court has already ruled on this issue in the judgment of 4 October 2011, Football Association Premier League and Others (C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 98), stating that ‘sporting events cannot be regarded as intellectual creations classifiable as works within the meaning of the Copyright Directive’. (b) the holders of that copyright either did not authorise communication to the public of the digital content or did so only in relation to certain sites which are accessed by membership fee or subscription; (c) users can purchase for themselves the add-ons which include the hyperlinks to the websites on which unrestricted access is provided to protected works without the right holders’ consent, and (d) those websites are available on the internet without need of a mediaplayer of the kind offered by Mr Wullems.

While I am tempted to explain at length the development of the case-law, composed of a substantial line of judgments, on the interpretation of Article 3(1) of Directive 2001/29, it does not seem to me to be necessary to repeat the analysis of the expression ‘communication to the public’ or of the two individual elements of that expression: the ‘act of communication’ of a work and the ‘public’ to which it is directed. I prefer to refer to the points made by the Court in the judgment in GS Media, and to mention the precedents for that judgment.  31 Judgment in GS Media, in particular paragraph 32 and the case-law cited. After that judgment was given, articles — some critical of it and some praising it — began to appear in the specialist media, as is logical and usual. See, for example, among those closest in time to the judgment, the article in the European Law Blog of 20 September 2016, ‘Saving the Internet or linking limbo? CJEU clarifies legality of hyperlinking (C‑160/15, Gs Media v Sanoma)’; or the debate in the plenary session of 20 September 2016 of the 47th World Congress of the International Association for the Protection of Intellectual Property (AIPPI) on The CJEU case law on hyperlinking and the earlier report of the working group on the subject of Linking and making available on the Internet. The requirement of certainty in the application of the law obliges the court, if not to apply the stare decisis in absolute terms, then to take care to follow the decisions it has itself, after mature reflection, previously adopted in relation to a given legal problem. To my mind, that is what must happen with regard to the case-law laid down (or confirmed) in the judgment in GS Media regarding the relationship between hyperlinks and communication to the public in the context of Directive 2001/29.

Accordingly, I shall adopt as the basis for my arguments the propositions previously set down by the Court, namely: (a) the provision of clickable links to protected works must be considered to be ‘making available’ and, therefore, such conduct is an ‘act of communication’;  32 Judgment of 13 February 2014, Svensson and Others (C‑466/12, EU:C:2014:76, paragraph 20). In that case, it was ultimately found out that there had not been a communication to a ‘new’ public because the persons targeted by the initial communication were internet users in general, since the links took users to protected works published without any access restrictions on another website (paragraphs 18, 25 and 26). (b) that concept refers to any transmission of the protected works, irrespective of the technical means or process used,  33 Judgment of 31 May 2016, Reha Training (C‑117/15, EU:C:2016:379, paragraph 38). and (c) there is a rebuttable presumption that the posting of a hyperlink to a work unlawfully published (without the authorisation of the right holders) on the internet amounts to a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/79, if it is done in pursuit of profit.

In the same vein, the Court has held that the concept of communication to the public of a protected work requires either the communication to be made by a specific method different from those used before or, failing this, the work to be distributed to a ‘new public’, deemed to be a public which the right holders did not take into account when they authorised the original (limited) distribution of the work.  34 According to paragraph 31 of the judgment of 13 February 2014, Svensson and Others (C‑466/12, EU:C:2014:76), ‘… where a clickable link makes it possible for users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only, and the link accordingly constitutes an intervention without which those users would not be able to access the works transmitted, all those users must be deemed to be a new public, which was not taken into account by the copyright holders when they authorised the initial communication, and accordingly the holders’ authorisation is required for such a communication to the public.’ The order of 21 October 2014, BestWater International (C‑348/13, EU:C:2014:2315, paragraph 14), elaborated on that view. It is decisive that the persons forming the public may access the digital content, not that those persons actually make use of that possibility, as indicated in the judgment of 7 December 2006, SGAE (C‑306/05, EU:C:2006:764, paragraph 43).

From an analysis of the facts of the case in the light of the propositions I have just listed, it is not difficult to conclude that the case-law laid down in the judgment in GS Media, regarding the relationship between hyperlinks and the concept of communication to the public, is applicable to those facts, and this, in large measure, determines the tenor of the reply to the first two questions.

As I have already pointed out, Mr Wullems installed on the user interface of the XBMC software add-ons with hyperlinks to websites providing unrestricted access to copyright-protected works. In addition to providing the hyperlink, Mr Wullems was — or ought to have been — aware that 14 of those add-ons included links to digital content uploaded to the internet without the authorisation of the copyright holders or with authorisation conditional on only certain persons being entitled to access that content through membership fee, subscription or another pay-per-view method. It goes without saying that Mr Wullems was operating in pursuit of a profit, given that he was selling his multimedia player.

Therefore, the dispute turns on the importance to be attached to one additional factor, not present in GS Media, to which Mr Wullems and the Commission refer in their observations, when they point out that the case concerns the sale of a multimedia player and not the provision of hyperlinks. Both Mr Wullems and the Commission submit that the sale of the player and the installation of hyperlinks on a website cannot be likened to one another and that, even if the concept of ‘communication to the public’ is interpreted broadly, it cannot be extended without limit so that it encompasses the sale of a multimedia player as well.  35 The Commission draws attention to the fact that the present case is concerned specifically with the ‘sale’ of the filmspeler multimedia player, which, in its submission, comes within the concept of ‘physical facility’, referred to in recital 27 of Directive 2001/29. The Commission states that the filmspeler, enables but is not equivalent to communication.

At the hearing, Mr Wullems and the Commission pointed out that Mr Wullems’ intervention was ‘not crucial’ and that he merely ‘enabled’ the public to have access to content that can be downloaded from other websites. The filmspeler is not, therefore, an essential part of the process connecting the website on which protected content is made available unlawfully and the end user. In the same vein, the sale of Mr Wullems’ device does not provide direct but indirect access to that content, so that the link or connection between Mr Wullems and the making available to the public of the protected works is tenuous and forms part of a more extensive chain of broadcasting.

The argument put forward by Mr Wullems and the Commission is, initially, persuasive. The sale, as a contract to supply a multimedia player in exchange for the price paid, would appear ‘neutral’, that is to say, it would have no direct connection to the transmission of protected works. Moreover, the Commission states that there must be some limit to the widening of the definition of ‘communication to the public’.  36 After acknowledging at the hearing that it was not satisfied with the judgment of 13 February 2014, Svensson and Others (C‑466/12, EU:C:2014:76), and the judgment in GS Media, the Commission warned that that approach in case-law could lead to legal uncertainty. From other quarters, various voices have complained that, through its rulings in this area, the Court is creating law rather than interpreting the existing law. I do not agree with the latter criticism, for the Court has confined itself to drawing attention to the potential effects, hitherto insufficiently recognised, of an imprecisely defined legal concept (‘communication to the public’), and has adapted the application of that concept to the development of the rapidly evolving technology which is used at any given time to make copyright-protected works available to the public.

However, in my opinion, that argument is, in fact, too reductionist. Marketing of the filmspeler goes beyond the mere sale of a technical accessory which, according to the Commission, fits the definition of ‘physical facilities for enabling or making a communication’, the provision of which ‘does not in itself amount to communication within the meaning of this Directive’.  37 Recital 27 of Directive 2001/29.

In that device, Mr Wullems provides, inseparably, the necessary hardware and software which are aimed directly at  38 Viewing and listening to protected works is made possible by the add-ons with hyperlinks to the websites concerned, which Mr Wullems installed in the XBMC software. As a result of the menus installed on the XBMC software interface with the add-ons which take him to those sites, a television viewer who uses the filmspeler becomes an internet user who is able to visit those sites. enabling purchasers to access copyright-protected works on the internet without the consent of right holders. Provision of that immediate access to an unspecified public is part of the added value of the service supplied by Mr Wullems, for which he receives the price paid — or at least a substantial part thereof — in return for the mediaplayer.

I believe that there is no significant difference between posting hyperlinks to protected works on a website  39 As was the case of the facts which led to the judgment of 13 February 2014, Svensson and Others (C‑466/12, EU:C:2014:76), the judgment in GS Media and the order of 21 October 2014, BestWater International (C‑348/13, EU:C:2014:2315). and, as in the present case, installing hyperlinks in a multimedia device designed specifically for use with the internet (in particular, so that, through it, users are able to access straightforwardly, directly and immediately, digital content made available without the consent of the authors). The provision of links to that protected content, the making available of that content to the public, is a feature common to both types of conduct, and its apparently incidental or ancillary nature cannot conceal the fact that the activities concerned are aimed at ensuring that anyone may, merely by clicking on the hyperlink, enjoy the protected works.  40 From another perspective, Mr Wullems’ conduct is similar but not identical to that at issue in the judgment of 7 December 2006, SGAE (C‑306/05, EU:C:2006:764). The signal distributed by the hotel by means of the television sets available in the rooms constituted communication to the public under Directive 2001/29.

Whatever the method or technical process by which they are installed, hyperlinks serve to enable third parties to access digital content which has already been uploaded — in this case, unlawfully — to the internet. The significant aspect of the communication to the public which takes place through those hyperlinks is the fact that it increases the range of potential users who, I repeat, are provided with a functionality involving the prior selection of websites that allow digital content to be viewed free of charge.

It is therefore possible to refer to the indispensable role, within the meaning of the case-law,  41 Judgment in GS Media, paragraph 35 and the case-law cited. played by Mr Wullems in the communication to the public of protected works; his intervention is performed deliberately and with full knowledge of the consequences entailed. That is clear, in particular, from the examples of the advertising he uses to promote his device.  42 See point 19 of this Opinion.

In short, the filmspeler cannot be regarded as a mere ‘physical facility’ within the meaning of recital 27 of Directive 2001/29, but rather as a type of communication to the public of copyright-protected works that have previously been unlawfully uploaded to the internet. Mr Wullems’ conduct involving the installation of hyperlinks to those works in his devices, which he clearly does in pursuit of a profit and in awareness of its unlawfulness, assists purchasers of the filmspeler to avoid the consideration payable for lawful access to those works, that is, payment of the remuneration due to the right holders which usually takes the form of a membership fee, subscription or another pay-per-view method.

Having established that the filmspeler carries out a communication to the public under Article 3(1) of the directive,  43 Judgment in GS Media, paragraph 51. it remains to be ascertained whether that public warrants the description ‘new’, as interpreted to date.

According to the case-law of the Court, the requirement of a ‘new public’ must be satisfied where the communication of the protected work is not made by means of a specific method which differs from the methods used up to that time.  44  Order of 21 October 2014, BestWater International (C‑348/13, EU:C:2014:2315, paragraph 14 and the case-law cited). Although that finding of fact falls to the national court, the method used by Mr Wullems does not appear to involve any new features but is rather a combination of other, pre-existing methods. In order to simplify the debate, it could therefore be accepted that, in this case, there is no ‘specific, different method’, for the purposes of the case-law, which would lead to an analysis of whether potential purchasers of the filmspeler can be classified as a ‘new public’.

According to the case file, and the French Government rightly draws attention to this, the protected works were either distributed on the internet without the authorisation of the right holders or that authorisation was granted only for subscription sites, in other words, restricted access sites. Hence, the multimedia player sold by Mr Wullems widens the pool of users beyond that intended by the authors of those works, inasmuch as it links both to websites distributing such digital content without authorisation and to sites containing protected works and making them available only to certain users who have to pay for access.

Moreover, notwithstanding the possibility of finding the add-ons on the market and the hyperlinks free of charge on the internet, the filmspeler entails an undeniable advantage for a significant portion of that public: persons not particularly skilled at using the internet to find illegal sites for watching films and televisions series, amongst other digital content. That portion of the public might prefer the user-friendly menu which the filmspeler displays on its screen to the sometimes laborious search for websites offering such content.

Be that as it may, the distribution of protected works which Mr Wullems facilitates is directed to a public which the right holders did not take into account when they authorised access to those works or did so only on payment circuits, from which it follows that the condition of a ‘new public’ is satisfied.  45 However, it must be made clear that only the distribution of protected works to end users which the filmspeler enables through the hyperlinks grouped on the 14 add-ons, which connect specifically to websites on which protected works may be streamed without the consent of the right holders, satisfies the definition of ‘communication to the public’ as interpreted by the Court. As regards the links to films, series and sports competitions authorised by those right holders, which are not subject to any restriction, access is unrestricted and the judgment of 13 February 2014, Svensson and Others (C‑466/12, EU:C:2014:76, paragraphs 25 and 26), is applicable.

I propose, therefore, that the reply to the first two questions referred for a preliminary ruling by the Rechtbank Midden-Nederland (District Court, Central Netherlands) should be that the sale of a multimedia player in which the seller has installed hyperlinks enabling direct access to protected works, such as films, series and live programmes, available on other websites without the authorisation of the copyright holder, constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.

By these two questions, the referring court raises two uncertainties which, as I have pointed out, do not concern the multimedia device but rather the compatibility with Directive 2001/29 of the conduct of an end user who, by means of that device, makes a ‘temporary reproduction … during the streaming of a copyright-protected work from a third-party website where that copyright-protected work is offered without the authorisation of the right holder(s)’. In particular, the referring court seeks to ascertain whether this type of conduct could be covered by Article 5(1) and (5) of that directive.

In view of that wording, the two questions were the subject of a number of pleas of inadmissibility because they appear to go beyond the boundaries of the case between Stichting Brein and Mr Wullems. However, following the explanations of the referring court, those pleas must be dismissed, for one of the heads of claim put forward by Stichting Brein in the main proceedings is that Mr Wullems should be found to have created misleading advertising and carried on unfair commercial practices, because in his advertisements, as a claim intended to increase sales, he stated that the mere streaming of works from unlawful sources (unlike the downloading of such works) is lawful. That is why the referring court, called upon to rule on that specific head of claim, needs the Court’s answer as to the interpretation of Article 5 of Directive 2001/29.

The considerations I shall set out below must be taken to refer to the facts of the main proceedings in the context of the main head of claim to which I have just referred, and to the application of Article 5 of Directive 2001/29.