Dutch Supreme Court refers piracy questions to CJEU

A dispute between Netherlands-based anti-piracy organisation BREIN and Usenet provider News-Service Europe (NSE) has been referred to the Court of Justice of the European Union (CJEU).

Last week, the Supreme Court of the Netherlands referred questions to Europe’s highest court, seeking clarification on piracy liability-related issues.

In 2009, BREIN sued NSE, to force the Usenet provider to take action against the illegal entertainment content on its service.

Usenet is an international collection of organisations and individuals whose computers connect and exchange messages posted by Usenet users.

Two years later, the Court of Amsterdam sided with BREIN, and concluced that NSE had willingly facilitated online piracy. NSE was ordered to remove all pirated content and filter future posts.

The Usenet provider said that it was impossible to comply with “such a disproportionate order” and ceased operations that year.

However, in 2014, the Amsterdam Court of Appeal reversed the judgment of the lower court, ruling that NSE wasn’t liable for copyright infringement by its users.

While the appeal court said that NSE didn’t need to install a filter, it did find that NSE was obliged to implement an effective notice-and-takedown procedure.

BREIN appealed against the judgment in early 2017 to the Supreme Court of the Netherlands. The anti-piracy organisation claimed that the appeal court’s decision was an “error”.

In an order last week, the Supreme Court asked the CJEU to consider the role and liability of Usenet providers, such as NSE.

The Supreme Court has asked whether NSE is communicating to the public and whether it is liable for its users’ copyright infringements.

If NSE is found not to be communicating to the public, the court has asked whether the Usenet provider is playing an active role that would make it liable for copyright infringements.

Finally, the Supreme Court has asked for clarity on whether the Usenet provider is required to do anything if it is shielded from liability.

The Supreme Court also made reference to article 13 (now article 17) of the new EU Copyright Directive, which is awaiting approval by the Council of Ministers.

Under the article, online content providers will need to obtain licences from rights owners. According to the Supreme Court, it’s unclear how this should be taken into account.