Tag Archives: Netherlands

AG Szpunar in Stichting Brein v Ziggo: An Indirect Harmonisation of Indirect Liability?

In the following piece, Christina Angelopoulos, Lecturer in Intellectual Property Law at the University of Cambridge, analyses the recent Opinion by AG Szpunar in case C-610/15, Stichting Brein v Ziggo. The post was originally published on the Kluwer Copyright Blog.

On 8 February, Advocate General Szpunar handed down his Opinion on Stichting Brein v Ziggo. The case is significant, as it represents the first time that the liability of an internet intermediary for copyright infringement will be considered by the CJEU. To date, all decisions handed down by that court on intermediary liability have instead concentrated on the related question of injunctions against intermediaries whose services are used by third parties to infringe.

Questions Referred

The case finds its origins in the Netherlands, where Stichting Brein, a Dutch anti-piracy organisation, applied for an injunctive order against internet access providers Ziggo and XS4ALL that would require them to block access for their customers to the peer-to-peer file-sharing website The Pirate Bay (TPB).

That application was upheld at first instance, but dismissed on appeal, on the grounds that, first, it is the customers of Ziggo and XS4ALL, and not TPB itself, who are the originators of the copyright infringements and, secondly, that the blocking sought would not be proportionate to the aim pursued, i.e. the effective protection of copyright.

The case eventually made it before the Hoge Raad, the Dutch Supreme Court, which decided to submit two questions to the CJEU. Essentially, these ask the following:

  1. Does TPB, by providing a system through which metadata on protected works that are present on its users’ computers is indexed and categorised, thus enabling those users to trace, upload and download the works, engage in a communication to the public of those works for the purposes of EU copyright law?
  1. If the answer to Question 1 is negative, may an injunction nevertheless be issued against Ziggo and XS4ALL, requiring them to block access for their customers to TPB?

It should be noted from the outset that these two questions are seen by the Dutch court as interconnected. The Hoge Raad is essentially querying whether TPB must be an infringer before access to it may be blocked.

[To continue reading this post on the Kluwer Copyright Blog, click here.]