The Court of Justice of the European Union – with the decision n. C-610/15 of 14 June 2017 – defined the question referred by the Supreme Court of Netherlands (Hoge Raad der Nederlanden) concerning the interpretation of the principle of “communication to the public” pursuant to Article 3, paragraph 1 Directive 2001/29/EC.

The main goal of Directive 2001/29/EC is to ensure an adequate level of protection for authors, allowing them to make a profit from the use of their works. Nevertheless, the Article 3, paragraph 1 of the aforementioned Directive does not specify the concept of “communication to the public”, providing for Member States the sole obligation to ensure authors the exclusive right to authorize or prohibit any communication to the public of their works.

The litigation arises from the petition filed at the National Court by Stichting Brein, the Netherlands foundation that protects copyright holders’ interests, against Ziggo e XS4ALL, whose sharing platform makes protected copyright content available to its users, despite the lack of authorization by the authors.

The Court of Justice of the EU – intervening on the matter – considered that the principle stated in the mentioned Directive must necessarily be understood in a broad sense, by virtue of teleological and logical-systematic interpretation of the dispositions. According to Article 3, paragraph 1 Directive 2001/29/EC it can be deduced that the concept of “communication to the public” consists in two cumulative elements: the act of communication of a work and its communication to an audience.

In the particular case, the platform administrators, through the management of an online sharing platform, allowed the free access to protected works, indexing and listing on such platform the torrent files that permitted users to locate such works and share them within a network of other users (“peer-to-peer”). These users can therefore access, at any time and simultaneously, to protected works by using the online sharing platform.

Furthermore, as is clear according to the mentioned Article 3, paragraph 1, Directive 2001/29/EC,  in order to have an act of communication, it is sufficient that the work is made available to the public in such a way that everyone can access to it, everywhere and when one prefers.

It follows that, recurring to the case the conditions pursuant to Article 3, paragraph 1 Directive 2001/29/EC, the Court of Justice of the EU affirmed that the provision and management of an online sharing platform that, throughout the indexing of metadata related to protected works, allows to its users to locate such works and to share them within a network of users (“peer-to-peer”), must be included in the concept of “communication to the public”.

This ruling is in compliance with the Court of Justice of the EU consolidated law-case (i.e. C-466/12, C-348/13, C-160/15) that – in accordance with the legislative framework of Directive 2001/29/EC – has provided an extensive interpretation of the concept of communication to the public in order to include any act by which a user allows to the access by other users to works protected by copyright.