The Criminal Court number 2 of Huelva, in its Judgment No. 290/2019 of 11 November (ECLI: ES:JP:2019:54), has ruled on the availability of numerous links giving access to copyright-protected audio visual works, without the authorisation of the rights holders.
This criminal proceeding was initiated after a claim filed by EGEDA (entity managing the Audio-visual Producers' Rights in Spain) against the administrator of two web pages, who provided, unlimited access to 253 films (including recently released works) via 419 links. The traffic generated by the said websites amounted to some 1.500.000 monthly visits.
The main issue at stake was whether the conduct carried out by the alledged offender is included within the scope of Article 270 of the Spanish Criminal Code(SCC), in force on the date of the events (year 2013), and, specifically, if the defendant's action constitutes an act of “public communication”.
The Court, taking into consideration, among others, the Spanish Supreme Court's Judgment No. 926/2016 of December 12 and the judgment of the European Court of Justice of February 13, 2014 (Svensson case), recalled that the provision of links that give access to protected works constitutes an act of public communication in the form of making available to the public.
Likewise, the Court, applying previous case law, established that the link to a work protected by its owner fits in the crime established in article 270 SCC because it encourages a communication of protected content that has not been authorized for free dissemination by the owners.
Therefore, the infringement is conducted if the links at hand allow access to a new public – understood as that which was not taken into consideration by the copyright holders when they authorised the initial communication to the public - of the protected contents, ignoring the conditions of access set by the owners.
This circumstance was confirmed by the Court itself, which understood that in the present case all the elements (objective and subjective) of the crime actually existed and thus article 270 SCC was applicable, since the assessed conduct:
- is an act of public communication aimed to a new public;
- constitutes an intentional conduct with concurrence of fraud, with the intention of profit and damage to third parties.
Finally, the Judge condemned the administrator of the two websites to a year in prison, a fine of fifteen months, and a special disqualification for the exercise of administration and management of websites and computer servers. The defendant was also sentenced to pay EGEDA a compensation which amounts to 2.981 euros in respect of civil liability. Finally, the judge ordered the blocking of access from Spanish territory to the two websites.