IP case law Court of Justice

Referral C-442/19 (Stichting Brein, 12 Jun 2019)



Has an operator of a platform for Usenet services (as NSE has been), under the circumstances as described in [points 1 to 7] and [16 hereof], made a communication to the public within the meaning of Article 3(1) of 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; ‘the Copyright Directive’)?

If the answer to question 1 is in the affirmative (and there is thus a communication to the public): Does the finding that the operator of a platform for Usenet services has made a communication to the public within the meaning of Article 3(1) of the Copyright Directive preclude the application of Article 14(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ 2000 L 178, p.1; ‘Directive on electronic commerce’)?

If the answer to question 1 or 2 is in the negative (and recourse to the exemption under Article 14(1) of the Directive on electronic commerce is therefore possible in principle):

Has the operator of a platform for Usenet services, who provides services as described in [points 1 to 7] and [16 hereof], played an active role that would in some other way preclude reliance on Article 14(1) of the Directive on electronic commerce?

Can the operator of a platform for Usenet services who has made a communication to the public and who is entitled to rely on Article 14(1) of the Directive on electronic commerce be prohibited from continuing the infringement, or can an injunction be imposed on it that goes beyond what is stated in Article 14(3) of the Directive on electronic commerce, or is that contrary to Article 15(1) of the Directive on electronic commerce?


Case details on the CJEU website (external link)


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