“Youkioske”, Record Conviction for Copyright Crime
Last February 5th, a new chapter relating to the www.youkioske.com proceedings ended up with a historical conviction on an alleged copyright infringement.
The web site www.youkioske.com functioned as digital kiosk since 2009 until its closure in May 2012. Entire pdf. files of the paper editions of more than 17.000 international publications such as magazines or newspapers were uploaded therein without the holders’ authorization and an a free-of-charge basis for the users. Among the publications object of reiterated dissemination at such web site there were newspapers such as El Mundo, Marca, El País and El Economista, and magazines such as Año cero, Enigmas or Playboy.
This web site followed the “streaming” technique which allows viewing multimedia contents in real time without the user having to download the content to his hard disk. The web site was free and the users were not required to log in to access the content.
Notwithstanding the above, the people responsible for the site made profit from the advertisements displayed at such site through “banners “(advertising spaces which link with the advertiser´s website) or “pre-roll videos” (consisting of an advertisement displayed in entire screen view before playing the chosen publication).
Article 270.1 of the Spanish Criminal Code (in Spanish) punishes with a prison term from 6 months to four years and a fine from twelve to twenty-four months anyone who, for profit and to the detriment of a third party, reproduce, plagiarize, distribute, or publicly disclose, in whole or in part, a literary, artistic, or scientific work, or an alteration, interpretation, or artistic rendering thereof on any medium or released by any means, without the consent of the owners.
Likewise, Article 271 of the Criminal Code states an aggravated offence with a prison term from two to six years, a fine from eighteen to thirty moths and special disqualification for the exercise of the profession related to the committed offence for a five-year term, when the facts are particularly serious taking into consideration the value of the unlawful reproduced objects, the number of works, or the particular importance of the damages caused, and also when the guilty party belongs to an organization dedicated to activities relating to intellectual property infringements.
Besides, article 20 of the Copyright Act (in Spanish) declares that “it shall be considered as public communication all act by means of which a plurality of persons may have access to the work without prior distribution of copies to each of them”, specially highlighting as communication acts under point j): “making available for the public any works, by wire or wireless means, in such a way that any person can have access to them at the place and time of his choosing”.
The Central Criminal Court No.5 heard the Abbreviated Proceeding No. 180/2011 against the people responsible for the site www.youkioske.com accused of an offence against intellectual property, and having closed it, this court sent the proceeding to the Second Section of the Spanish National High Court which passed decision on 5 March 2015 sentencing the people responsible for the site , among other things, to three years imprisonment, the payment of a fine of 10 Euros per day during twenty months, and the penalty of special disqualification for the exercise of the profession relating to server and web site administrators and content administrator in such sites for a five-year term as authors responsible for an aggravated offence against intellectual property. These people were also sentenced to further three years imprisonment more, among other things, for a crime of promotion and incorporation of a criminal organization.
In accordance with the Judgment of the National High Court, the facts can be included in the concept of public communication (art. 20 of Copyright Law), and concretely, regarding the right of making available set forth in article 3.1 of Directive 2001/29 on certain copyright matters and copyright related rights in the information society. Moreover, the Judgment makes reference to the concept of public communication provided for in the European Court of Justice Judgment of 13 February 2014, C-466/2012, “Svennson”, which interprets the Directive and declares that what defines an intellectual property offence is the existence of a public communication of contents that were not available for the public before. On the basis of this doctrine, this does not happen when what are uploaded to the Internet are links “to be clicked on and which redirect the user to works that can be freely consulted on the Internet”. Specifically the first point of the ruling states:
“1) Article 3, point 1 of Directive 2001/29/EC of the European Parliament and of the Council, of 22 May 2001 , on harmonization of on certain copyright matters and copyright related rights in the information society, declares that such provision must be interpreted in the sense that the fact of displaying the link of a website which can be clicked on and which redirects to works that can be freely consulted on any other internet site, does not means a public communication act”.
As a result thereof, sensu contrario, when the referred links cannot be previously consulted freely on any other website on the Internet, this would mean a public communication.
This Judgment of the National High Court was the object of a cassation appeal filed by the defendants before the Supreme Court based on the failure to observe procedural requirements. In Judgment No.638/2015 of 20 October 2015, the Supreme Court partially upheld the referred appeal and set aside the judgment against the defendants issued by the National High Court.
The Supreme Court considered that the ruling lacked grounds because the decision did not point out the concrete contents on which the offence behavior was based, and did not identify the infringed intellectual property rights. Thus the National High Court was requested to issue a new judgment specifying if the contents of www.youkioske.com had been published before on the Internet, as a prior requisite to determine whether there was or not “public communication” in the sense provided for in the doctrine supported by the “Svennson” decision, and therefore, if it can be considered an offence against intellectual property.
In the new Judgment of the National High Court of 5 February 2016, the judges decided in the same line as in their previous judgments, sentencing the defendants to the same penalty. However the court corrected the mistakes highlighted by the Supreme Court and specified a list with the publications that were uploaded at the site whose intellectual property rights were infringed.
This new decision establishes that the main publications affected are entire non-authorized digital reproductions of hard copy and digital publications which were reproduced in the site with the aim of disseminating it and with a profit making purpose derived from the advertising. Therefore the activity of “youkioske” was indeed addressed to a “new” public, as far as it related to content to which only those people or internet users who have previously paid a registration or who have bought the printed version can have access.
The penalty consisting, among others, of a three year imprisonment for an aggravated offence against intellectual property, and further three years imprisonment more for a crime of promotion and incorporation of a criminal organization the payment of a fine of 10 Euros per day during twenty months, and the penalty of special disqualification for the exercise of the profession relating to server and web site administrators and content administrator in such sites for a five-year term, is the most serious judgment issued on these kind of actions and it is the first time that a judgment concerning copyright infringement exceeds a prison term of two years. This means that if this decision becomes final, the defendants shall not be allowed to replace it under article 80 of the Criminal Code, and they should effectively go to prison.
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