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(27) 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.’Ĥ Article 3 of that directive, entitled ‘Right of communication to the public of works and right of making available to the public other subject matter’, provides in paragraph 1: This right should not cover any other acts.
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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 be understood in a broad sense covering all communication to the public not present at the place where the communication originates. (23) This Directive should harmonise further the author’s right of communication to the public. Adequate legal protection of intellectual property rights is necessary in order to guarantee the availability of such a reward and provide the opportunity for satisfactory returns on this investment. The investment required to produce products such as phonograms, films or multimedia products, and services such as “on-demand” services, is considerable. (10) If authors or performers are to continue their creative and artistic work, they have to receive an appropriate reward for the use of their work, as must producers in order to be able to finance this work. Intellectual property has therefore been recognised as an integral part of property. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. ‘(9) Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. – the European Commission, by J. Samnadda, T. Scharf and F. Wilman, acting as Agents,Īfter hearing the Opinion of the Advocate General at the sitting on 8 February 2017,ġ This request for a preliminary ruling concerns the interpretation of Articles 3(1) and 8(3) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10), and of Article 11 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45, and corrigendum in OJ 2004 L 195, p. 16).Ģ The request has been made in proceedings between, on the one hand, Stichting Brein, a foundation which safeguards the interests of copyright holders, and, on the other hand, Ziggo BV and XS4ALL Internet BV (‘XS4ALL’), internet access providers, concerning requests made by Stichting Brein for an order requiring Ziggo BV and XS4ALL to block the domain names and IP addresses of the online sharing platform ‘The Pirate Bay’ (‘online sharing platform TPB’).ģ Recitals 9, 10, 23 and 27 of Directive 2001/29 state: – the United Kingdom Government, by G. Brown and J. Kraehling, acting as Agents, and by N. Saunders, Barrister, – the Portuguese Government, by L. Inez Fernandes and M. Figueiredo, acting as Agents, assisted by T. Rendas, Legal Adviser, – the Italian Government, by G. Palmieri, acting as Agent, assisted by F. Di Matteo, avvocato dello Stato, – the French Government, by D. Segoin, acting as Agent, – the Spanish Government, by V. Ester Casas and A. Gavela Llopis, acting as Agents, – XS4ALL Internet BV, by C. Alberdingk Thijm and C.F.M. de Vries, advocaten,
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– Ziggo BV, by F.E. Vermeulen and E.A. de Groot, advocaten, – Stichting Brein, by J.C.H. van Manen, advocaat,
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Having regard to the written procedure and further to the hearing on 27 October 2016,Īfter considering the observations submitted on behalf of: Registrar: M. Ferreira, Principal Administrator, REQUEST for a preliminary ruling under Article 267 TFEU from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), made by decision of 13 November 2015, received at the Court on 18 November 2015, in the proceedingsĬomposed of M. Ilešič (Rapporteur), President of the Chamber, A. Prechal, A. Rosas, C. Toader and E. Jarašiūnas, Judges, (Reference for a preliminary ruling - Intellectual and industrial property - Directive 2001/29/EC - Harmonisation of certain aspects of copyright and related rights - Article 3(1) - Communication to the public - Definition - Online sharing platform - Sharing of protected files, without the consent of the rightholder)
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