Mr. Wullems sold, on a number of internet sites, including his own site, various models of a multimedia player. On that player, Mr. Wullems installed an open source software, which made it possible to play files through a user-friendly interface via structured menus, and integrated into it, without alteration, add-ons available on the internet, created by third parties, some of which specifically linked to websites on which protected works were made available to internet users without the consent of the copyright holders.

Stichting Brein is a Netherlands foundation for the protection of the interests of copyright holders. Stichting Brein asked Mr. Wullems to stop selling the multimedia player and subsequently brought an action against Mr. Wullems before the referring court, arguing that Mr. Wullems had made a ‘communication to the public’, in breach of Article 3, para. 1, of Directive 2001/29. In reply Mr. Wullems submitted that streaming broadcasts of works protected by copyright from an illegal source was covered by the exception listed in Article 5, para. 1, of the same Directive.

Following a request for a preliminary ruling by the Dutch Court, the Court of Justice recalled its case law on communication to the public, and begun by observing that this case did not concern a situation of ‘mere’ provision of physical facilities for enabling or making a communication. Indeed, Mr. Wullems, with full knowledge of the consequences of his conduct, pre-installed onto the ‘filmspeler’ multimedia player that he marketed add-ons that specifically enabled purchasers to have access to protected works published — without the consent of the copyright holders of those works — on streaming websites and enabled those purchasers to watch those works on their television screens. That intervention enabling a direct link to be established between websites broadcasting counterfeit works and purchasers of the multimedia player, without which the purchasers would find it difficult to benefit from those protected works, was quite different from the mere provision of physical facilities, referred to in recital 27 of Directive 2001/29.

The Court then held that Mr. Wullems had made a “communication to the public”, seeing as the ‘filmspeler’ multimedia player had been purchased by a fairly large number of people. Furthermore, the communication at issue in the main proceedings covered all persons who could potentially acquire that media player and had an internet connection, so that it could be said with certainty that the communication had indeed occurred with regard to a “public”. Moreover, the Court held that this was a “new” public in that it had not been taken into account by the copyright holders when they authorised the initial communication. The Court stated that it was common ground that the sale of the ‘filmerspeler’ multimedia player was made in full knowledge of the fact that the add-ons containing hyperlinks pre-installed on that player gave access to works published illegally on the internet. In fact, the advertising of that multimedia player specifically stated that it made it possible to watch on a television screen, freely and easily, audiovisual material available on the internet without the consent of the copyright holders.

As to the exception raised by Mr. Wullems, the Court held that no legitimate use had been made of the copyrighted work, so that the conduct of Mr. Wullems could not be held to fall within Art. 5, para. 1 of Directive 2001/29. Such provision must be interpreted as meaning that acts of temporary reproduction, on a multimedia player, such as that at issue in the main proceedings, of a copyright-protected work obtained by streaming from a website belonging to a third party offering that work without the consent of the copyright holder does not satisfy the conditions set out in those provisions.