For many years now, watching movies and series has shifted to various internet platforms, while authors are wondering where their copyrights are in all of this. Answers to that question should be provided by the Copyright and Related Rights Act (‟Copyright Act”), which came into operation more than 11 years ago, during a surge in the use of various data exchange platforms. Data is exchanged much faster, and computer technology is far more complex than it was before, and the Copyright Act is lagging behind in its response to emerging challenges regarding new ways of using technology and protecting authors.
To whom does copyright “belong”? The most general answer is – to the painter, to the programmer who created the computer program, to the composer – to every person who creates a work of authorship.
Apart from the authors and inventors, intellectual property rights benefit society too. In addition to the interest of authors to enjoy the benefits of their creative work as much as possible, there is an opposing interest on the part of the community to consume content without paying a fee. It can also be said that entire industries owe their existence to copyright, while in the meantime, many believe that it is completely normal to “download” a movie from the Internet and watch it on their computer, for free.
In order to reconcile conflicting interests and strike a balance so that authors enjoy moral and property rights and to prevent the community’s interest in copyrighted works from waning, legislation around the world has imposed certain restrictions.
The Internet and the development of various technologies have provided many ways to reproduce a work of authorship. So, it is necessary to interpret the existing rules on property rights in much more detail, in relation to those already existing which imply that the author may prohibit third parties from reproducing his work. For instance, we could say that a work of authorship is reproduced if we download it from the Internet or access it while browsing, because all these actions require temporary storage on the computer’s RAM. Any form of exploitation of a work within the meaning of the Copyright Act without the consent of the author and without paying of compensation equals violation of copyright. Having in mind the available ways to access the works of authorship, violations of copyright are practically very difficult to trace.
Status and legal nature of torrent platforms
A well-known way to exchange data are torrent platforms, which allow a user to download a file in fragments from the computers of several different sources simultaneously. The sources, so-called seeders are the other users of the torrent platform who keep the file on their computer. Once the file is downloaded, it gets the proper format, and the content is ready to watch and / or listen to.
It is clear that a large percentage of seeded content is made up of protected works. So, the question which arises is how will the scope of authors’ rights be interpreted now?
Another question that arises in this case is the nature of torrent platforms since the operators and the users do not “store” files on such platforms. However, such platforms are a kind of a crossroads which direct users to addresses where they can find and download content. If a platform contains a magnet link, does it constitute unauthorized making of a work available to the public?
Authors around the world have relied on broadened interpretations of the existing rules, which quickly led to mass disputes over (possible) copyright infringement. A well-known dispute in this matter was heard in the Netherlands. The dispute lasted a full five years before the Dutch courts, until the Supreme Court of the Netherlands addressed the Court of Justice of the European Union. The Court of Justice of the European Union did not hesitate to apply an for broadened interpretation of the rules, in particular, the EU Information Society Directive. In case C-610/15 Stitching Brein vs Ziggo BV the Court of Justice of the European Union reasoned that The Pirate Bay operators infringed copyright, namely the right to communicate work to the public. The Court of Justice of the European Union in a 2017 decision concluded that, although the operators of The Pirate Bay platform did not directly post the content on the Internet, they are still liable for copyright infringement. However, how did the Court of Justice of the European Union defend its position?
The argumentation was (not) simple – the operators made it possible for the content to be available on the platform by enabling the search of the work by category, and the operators of the platform decide on what will be found on it in many ways. According to the Court of Justice of the European Union, the above shows that the operators knew or had to know that the protected content was indirectly “found” on the platform, which constitutes copyright infringement.
Internet streaming platforms
Streaming platforms work in a similar way to torrent platforms by combining torrent and streaming. When users wish to enjoy certain (protected) content, they access the platform and the content is not stored in the computer’s memory as is the case with downloading torrent files, but is temporarily written to the computer’s memory and disappears when the user exits the platform.
However, even differences such as those do not save internet platform operators from liability. The main argument put forward by streaming platform operators is that they do not share content or host, but only share information, as, for example, search engines such as Yahoo and Google do.
To avoid an unbroken chain of “shifting” responsibilities, US courts have developed the so-called inducement rule. If the platform explicitly and directly leads the user to infringe copyright, the answer is clear – the operator is liable for copyright infringement. For instance, if a platform explicitly offers its users access to protected movies, it is clear that the operator of the streaming platform is liable for copyright infringement.
In addition to streaming content, internet platforms often just contain instructions, links, articles that explain to the user of the platform how to use a particular program, and how to access (protected) content. In a decision rendered earlier this year the Supreme Court of Denmark took the position that posting such content on the platform also constitutes copyright infringement. In this case, the defendant was the operator of the Popcorntime.dk platform, and his argumentation centered on the right to freedom of expression provided for by the European Convention on Human Rights. The Supreme Court of Denmark did not accept the defendant’s argument, but concluded that this act infringed copyright, because a large number of users used the Popcorn Team program in accordance with the instructions they made available, and the use of such software per se includes copyright infringement.
Conclusion
Although both torrent and streaming platforms do not contain files, we could say that the existence of these platforms is not look on favorably by European courts in most cases. From their point of view – the platform operator knows or must know that their platform will directly or indirectly lead the user to the protected work, so that the user will enjoy the work illegally.
Although disputes of this kind before the Serbian courts are few and far between, one can still expect that judges will interpret the relevant provisions of the Copyright Act more broadly to resolve disputes in a more efficient way and to apply the Copyright Act in accordance with its purpose, which is – protection of the authors’ creative work and the interest of the community to enjoy as many copyrighted works royalty-free as much as possible. The second goal is certainly to provide a level of intellectual property protection that is similar to the level of protection in EU Member States, to which Serbia has committed itself by signing the Association Agreement.
