In an international operation „Taken down“, supported by Europol and Eurojust, one of the largest transnational streaming networks that illegally served over 22 million users has been dismantled.
Law enforcement authorities from Bulgaria, Croatia, France, Germany, Italy, the Netherlands, Romania, Sweden, Switzerland and the United Kingdom were involved. Over EUR 1.6 million in cryptocurrency and EUR 40 000 in cash was seized. Various drugs and weapons were found. The financial damages to the copyright holders are estimated at EUR 10 billion. The Croatian police arrested 11 people on suspicion of being involved in illicit activities.
Stream now, be liable later?
There is a heated discussion among the Croatian public about liability of users of illegal streaming services. Some intellectual property experts are sending the message that the use of illegal IPTV services is a violation of copyright laws. Others think users cannot be liable and are justifying users’ activities by arguing that one of the main drivers of audiovisual piracy is low catalogue overlapping between streaming services. Are users in trouble?
From Croatian law perspective, the elements of severe crime or misdemeanour may be identified mainly in the illegal service providers’ activities connected with distribution and streaming of infringing copies of audiovisual work.[1] However, even if no crime or misdemeanour can be identified in users’ activities, users can still be held liable in a civil case for the same conduct.
Every stream leaves a footprint
In the context of European union copyright law, copyright holders have the exclusive right to reproduce the audiovisual work. They also have the right to prohibit others from reproducing the audiovisual work by any means and in any form, direct or indirect, temporary or permanent reproduction, in whole or in part,[2] except in specific situations when reproduction of some work is allowed without the need to get permission from the copyright owner.
Certainly, by downloading audiovisual work the reproduction right is infringed. However, streaming enables users to watch films, series and sport without the need to download content. This characteristic of streaming challenges the reproduction right of right holders.
During streaming, process of “buffering” is happening. It is a process of transmitting a small segment of streaming video from the server to the user. As the video watching continues, the rest of the segments are loaded. A buffer is used as temporary storage of data while video is still being transmitted. It is temporary because storage streaming content will be automatically deleted in the process of streaming. Many types of memories can be used as buffers, such as Random Access Memory (RAM).
Such an act of reproduction, no matter how small and transient streaming segments in RAM are, could amount to an infringement of the reproduction right provided that reproduced part shows the author’s own intellectual creation.[3]
Excuse me for streaming, it’s only temporary copy
Can users use transient characteristics of reproduced copies as a defence? The exclusive right of reproduction is subject to an exception to allow certain acts of temporary reproduction covering online activities, such as caching and browsing, enabling efficient functioning of the Internet. The exception available for temporary copying, prescribed in Article 5(1) of the Information Society Directive, allows certain acts of temporary reproduction, which are transient or incidental reproductions, forming an integral and essential part of a technological process and carried out for the sole purpose of enabling either efficient transmission in a network between third parties by an intermediary, or a lawful use of a work or other subject-matter to be made. The acts of reproduction concerned should have no separate economic value on their own.
To the extent that acts of temporary reproduction meet all these conditions, such a use should be considered lawful. Even though applicability of this exception should be considered on a case-by-case basis, the fact that users of illegal IPTV knew that the content they were streaming was infringing, and they were paying subscription to illegal streaming providers around €10 a month, could be crucial for either condition of lawful use and/or independent economic significance. In this sense, it is very likely that users will not be able to use Article 5(1) as a defence.[4]
Other big consequences of illegal streaming
Users should be aware that illegal streaming is not a crime without victims.
The loss to rightsholders, estimated at EUR 10 billion, represents revenue that will not be invested in new audiovisual works or will not be returned on investment. There are high financial investments required for making the audiovisual work. The audiovisual industry is also labelled as high risk because it is influenced by numerous factors, from weather to regulatory issues. To minimize the risk and to finance making the audiovisual work, producers are seeking ways to collect enough financing at the earliest stage of production. With more difficulties for the European audiovisual sector to raise production financing, production of culturally diverse content is jeopardized.
Many users who see no harm in illegally streaming, will be surprised by seized weapons, drugs, and funds (in cryptocurrency and in cash) in operation „Taken down“. Understanding that Illegal streaming is often connected with other criminal organizations and activities, such as money laundering and cybercrime, is crucial in fighting against illegal streaming. By watching Illegal IPTV, criminal organizations have access to users᾽ personal and credit card details, and users are exposing themselves to danger of scams and identity theft.
Illegal streaming is a risky business!
Make no mistakes about it, illegal streaming is not only risky business for illegal service providers, but also for the users exposing themselves to copyright infringement liability, and their personal and financial information to criminal organizations, with overall adverse impact on European audiovisual industry and variety of titles available to watch in the future.
Awareness should be raised that only safe way to watch the latest movie is the legal way.
This text is for informational purposes only and should not be considered as legal advice. Should you require any additional information, feel free to contact us.
[1] Article 296 (1.6) of the Croatian Copyright and related rights Act (Official Gazette no. 111/2021): “…without the authorization of the author or other copyright holder, or a collective management organization reproduces a copyright work for further distribution…”. Article 285 (1) of the Criminal Act (Official Gazette no. 125/2011, 144/2012, 56/2015, 61/2015, 101/2017, 118/2018, 126/2019, 84/2021, 114/2022, 114/2023, 36/2024):“…whoever, contrary to regulations on copyright and related rights reproduces, adapts, distributes, stores or takes any other action for the purpose of distribution of, or communicates to the public in whatever way another’s copyright work, or allows this to be done and thus obtains a considerable material gain or causes considerable damage….”
[2] Article 2 of the Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (further in the text: Information Society Directive)
[3] See case Infopaq International A/S v Danske Dagblades Forening (C-5/08), ECLI:EU:C:2009:465 (para. 51)
[4] See case Stichting Brein v Jack Frederik Wullems (C-527/15), ECLI:EU:C:2017:300 (para. 69 and 70)
This text is for informational purposes only and should not be considered as legal advice. Should you require any additional information, feel free to contact us.
