- Rights holders can avail of civil enforcement measures against both direct infringers and intermediaries.
- A wide spectrum of blocking injunctions can be sought against internet access providers to repress IPTV infringements.
- Internet intermediaries can receive orders to disclose information on infringers; however, disclosure of information on end-users of illegal IPTV services may not be compatible with EU data protection law.
- Criminal measures are also available in all EU Member States against IPTV infringers on a commercial scale.
- Import and sale of IPTV devices may be prohibited on the ground of non-compliance with EU standards on radio equipment.
The role of internet intermediaries
The delivery of live broadcasting content through the internet requires the involvement of a number of intermediaries. While these actors can attract liability on a number of grounds, the e-Commerce Directive at Articles 12 to 15 creates a set of immunities for a special category of intermediaries, namely ‘information society service providers’ (ISSP).
These broadly conceived immunities exempt, under certain conditions, ISSP from liability for infringements and other wrongdoing committed by recipients of the service. However, they do not preclude the possibility, for a judicial or administrative authority, to impose measures to stop the unlawful behaviour or to demand the disclosure of information on the infringer. In particular, they leave unaffected the ability of rights holders to seek injunctions against ISSP.
Given the variety of intermediaries involved in the IPTV ecosystem, an assessment of liability is only possible on a case-by-case basis. On a very general level, the acquis communautaire allows for a distinction in three broad categories:
- Intermediaries that do not meet the conditions set by the e-Commerce Directive and therefore are not shielded by the immunities. These actors may be held liable for direct copyright infringement.
- Intermediaries whose liability is triggered by actual or constructive knowledge of illegal acts committed by using their services.
- Intermediaries that are under no obligation to act upon receiving knowledge of infringements and can be held liable only upon receiving a court order.
ISSP benefit from exemptions of liability when their activity ‘is of a mere technical, automatic and passive nature’, which implies that the ISSP ‘has neither knowledge of nor control over the information which is transmitted or stored’.
The CJEU has construed this requirement strictly, as excluding services that provide assistance to the users, for example by ‘optimising or promoting’ the online sale activities hosted by their services.
Although the jurisprudence is not settled, and further guidance is expected from pending referrals, the current position clearly excludes from the exemptions those services that systematically and methodically aggregate links to unauthorised IPTV, or that invite users to make those links available on their service.
To the extent that they play an active role in the collection, selection and aggregation of links, they are excluded from the beginning from the exemption of Article 14. This means they do not escape liability even if they act expeditiously and remove the link upon receiving notice of infringement. Moreover, as seen in Stichting Brein v Ziggo, they commit an act of communication to the public and are therefore liable for direct copyright infringement.
ISSP that store information provided by third parties belong to the category of ‘hosting’. In the IPTV environment, services that provide the internetworking infrastructure (network, web servers, web technologies, racks, etc.) in order to deliver a web service, fall squarely within this category.
These services are immune from liability as long as 1) they do not have knowledge of an illegal activity carried out on their services or are not aware of facts or circumstances from which this activity is apparent, or 2) upon obtaining such knowledge, they act expeditiously to remove or disable access to the illegal content.
Hosting services that do not act after receiving notice of an infringement may become liable to indirect copyright infringement, depending on the laws of Member States.
The definition of hosting service under the e-Commerce Directive is a very broad and general one and requires a case-by-case assessment. Some ISSP may act as hosting services in some of their functions but not in others. Search engines are a case in point.
In Google v Louis Vuitton, the CJEU held that a search engine can benefit from the immunity of Article 14 as long as it does not play an active role of such a kind as to give it knowledge of, or control over, the data stored. According to the AG’s opinion in these cases, only partially followed in the Court’s judgement, the immunity does not apply to Google’s activities related to AdWords.
In any event, the main search engines such as Google and Bing respond to rights holders’ requests to de-index infringing websites from search results.
Mere conduit and caching
ISSP that transmit but do not store information may fall under the category of ‘mere conduit’ or ‘caching’. Network suppliers and internet access providers are examples of ‘mere conduit’ services. These intermediaries are shielded from liability if they do not play more than a purely technical role in the transmission of the information.
As confirmed by the CJEU in Mc Fadden v Sony Music Entertainment, access providers that fall under the scope of Article 12 are under no obligation to act upon receiving knowledge of an infringement committed by users of their services. Therefore, rights holders need to obtain a court order to force these ISSP to disable the information.
As far as IPTV is concerned, the most critical question is whether Content Technology Providers (CTS), namely services that provide the technical infrastructure required for delivering the streaming, fall under one of these two categories of ISSP or rather under the (more onerous) ‘hosting’ exemption. The CJEU jurisprudence does not offer assistance on this point.
Although it is difficult to argue that CTS ‘store’ any information, they nevertheless have the capacity to ‘disable’ access to live streaming and are the actors that are best placed to do so within the IPTV ecosystem.
On this account, they may be held subject to the same obligations as fully-fledged hosting services. However, these services often normally resist rights holders’ requests to disable infringing content, and an injunction must be sought to this effect.
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