Copyright: ECJ has to solve tricky questions about streaming and geoblocking

Many member states have not yet implemented the EU copyright reform linked to upload filters, but the original Copyright Directive from 2001 still contains some unsolved problems. The Supreme Court of Austria recently asked the European Court of Justice (ECJ) for a preliminary ruling in two cases, which again deal with copyright protection in Internet television and streaming as well as geoblocking.

The defendant in the one legal dispute (Az .: 4 Ob 40 / 21t), about the the specialist blog IPKat now reports offers commercial customers such as network operators, hotels and stadiums individual complete IPTV solutions in a closed network. In addition to station packages, these also include an online video recorder that enables time-shifted television: individual or series recordings of entire programs can be made.

The service also includes a replay function, with which program content up to seven days ago can be accessed again. Recordings are only made by the recorder if an end user carries out appropriate programming. The replay function must also be activated first, the rest of the work is carried out fully automatically by the system. A “de-duplication process” is running in the background. It has the effect that if recordings for several customers are programmed in the same way, several copies of the content are not created.

The plaintiffs are two television broadcasters based in Germany and Austria. They see their rights violated. The defendant replies that the reproductions made by its service are permissible digital private copies. End customers are only provided with the technical infrastructure including data storage; they alone can start and stop individual recordings. The organizational sovereignty for the copy function and control over the use of the system does not lie with the defendant, nor does it create a master copy relevant to copyright. The process of de-duplication running in the background only serves to optimize resources. As a result, only the recorder’s system is implemented.

The Austrian court now wants to know from the ECJwhether the operation of an online video recorder provided by a commercial provider, including a weekly review, is compatible with the copyright guidelines. It should be noted that the technology only refers to an existing copy if it has already been created by another user. However, the rights holder has not given their consent.

The second question relates to whether there is a potentially illegal “communication to the public”. The decisive factor here is that the user also has access to content that the broadcaster has not released for online exploitation. The system provider knows that his service also enables the reception of protected content without the consent of the rights holder, but does not advertise with this option. Rather, customers would be advised when concluding the contract that they would have to take care of the granting of rights on their own responsibility.

The ECJ had already decided in 2017 in the dispute between the anti-piracy authority Stichting Brein vs. Filmspeler that the sale of a media player for illegal streams violates the directive. The situation here is more complicated due to the technology used. The referring court is inclined to rule in favor of the rights holders on both issues. However, in view of the remaining ambiguities, it wants to be on the safe side.

The second case (Ref .:4 Ob 44/21f) concerns a streaming platform aimed at emigrants from the territory of the former Yugoslavia in the EU and the USA. The defendant operated the solution on the basis of license agreements with TV broadcasters. Accordingly, it was obliged to block the streaming signal for certain programs in certain areas.

The applicant is a company based in Serbia. She runs a media company that produces, among other things, four television shows that are popular in the countries of the former Yugoslavia. It claims that bypassing the defendant’s geo-blocking measures is relatively easy, that the defendant knows about customers using their service outside of the licensed area, and that it fails to prevent such illegal use.

Here, too, the Austrian court asks for an interpretation of the term “communication to the public” within the meaning of the directive. It emphasizes, for example, that it was possible to receive content via the streaming service that was not authorized by the rights holders for several weeks even without a Virtual Private Network (VPN). It should also be clarified whether third parties who advertise the service, conclude test subscriptions with end customers, operate customer service and accept payments, are also liable for potentially illegal reproduction.

Judgments by Luxembourg judges can be expected within a year and a half.


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