Advocate General advises CJEU to rule that The Pirate Bay makes acts of 'communication to the public'

On 8 February 2017, Advocate General Szpunar issued his opinion in Stitching Brein v Ziggo BV and another (Case C-610/15). This concerned a reference from the Dutch court as to whether The Pirate Bay, a peer-to-peer file sharing website, ‘communicates’ works to the public and therefore amounts to copyright infringement.

The AG answered in the affirmative, advising the CJEU that where the operator of a website makes it possible, by indexing them and providing a search engine, to find files containing works protected by copyright which are offered for sharing on a peer-to-peer network, this constitutes a ‘communication to the public’ within the meaning of Article 3(1) of the Copyright Directive. However, this is subject to the website operator being aware of the fact that a work is made available on the network without the consent of the copyright holders and does not take action in order to prevent access to that work.

The AG’s opinion will be welcomed by copyright owners. If followed by the CJEU, the activities of website operators like The Pirate Bay, which facilitate access to protected works such as music and films, may be classed as a ‘communication to the public’ and consequently an infringement of copyright.