Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 12 July 2021 – Grand Production d.o.o. v GO4YU GmbH and Others
(Case C-423/21)
Language of the case: German
Referring court
Oberster Gerichtshof
Parties to the main proceedings
Applicant: Grand Production d.o.o.
Defendants: GO4YU GmbH, DH, GO4YU d.o.o Beograd, MTEL Austria GmbH
Questions referred
Is the concept of ‘communication to the public’ in Article 3(1) of Directive 2001/29 1 to be interpreted as meaning that such communication is made by the direct operator (not established in the European Union in this case) of a streaming platform, whereby that operator
alone decides on the content and blacking out of TV programmes broadcast by it and implements them from a technical point of view,
has sole administrator rights for the streaming platform,
can influence which TV programmes can be received by the end user via the service, but cannot influence the content of the programmes,
and is the sole point of control as regards which programmes and content can be watched in which territories and when,
where, in each case,
the user is provided with access not only to broadcasting content the online use of which has been authorised by the respective rightholders, but also to protected content for which rights clearance has not been obtained, and
the direct operator of the streaming platform is aware that its service also enables the reception of protected broadcasting content without the consent of the rightholders by virtue of the fact that the end customers use VPN services which give the impression that the IP address and device of the end customers are located in areas for which the consent of the rightholder has been obtained, but
the reception of protected broadcasting content via the streaming platform without the consent of the rightholders was in fact possible for several weeks even without VPN tunnelling?
If the first question is answered in the affirmative:
Is the concept of ‘communication to the public’ in Article 3(1) of Directive 2001/29 to be interpreted as meaning that such communication is also carried out by third parties (having, in this case, their registered offices in the EU) which are related, contractually and/or under company law, to the platform operator described in the first question, and which, without themselves having any influence on the blackouts and on the programmes and content of the broadcasts brought to the streaming platform,
advertise the operator’s streaming platform and its services, and/or
offer trial subscriptions to customers that automatically end after 15 days, and/or
support the customers of the streaming platform as a customer service provider, and/or
offer on their website paid subscriptions to the streaming platform of the direct operator and then act as the contractual partner of the customers and as the recipient of payment, whereby the paid subscriptions are created in such a way that an express reference to the fact that certain programmes are not available is made only if a customer explicitly indicates at the time of conclusion of the contract that he or she wishes to see those programmes, but, if customers do not express that wish or specifically enquire about such programmes, they are not informed of that fact in advance?
Are Article 2(a) and (e) and Article 3(1) of Directive 2001/29, read in conjunction with Article 7(2) of Regulation No 1215/2012, 1 to be interpreted as meaning that, in the event of an allegation of infringement of copyright and related rights guaranteed by the Member State of the court seised, that court has jurisdiction only to rule on the damage caused in the territory of the Member State to which it belongs – because the territoriality principle precludes domestic courts from having jurisdiction to determine and examine the facts in relation to foreign acts of infringement – or can or must that court also rule on offences committed outside that territory (worldwide), as alleged by the author whose rights were allegedly infringed?
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1 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 (OJ 2001 L 167, p. 10).
1 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).