The District court of The Hague ruled that embedding or linking to radio-streams without a license constitutes a violation of copyright. The case was brought before court by collecting society Buma/Stemra against the operator of radio streaming websites ‘Nederland.fm’ and ‘Op.fm’. 

‘Nederland.fm’ embeds radio-streams from other (official) radio websites, while ‘Op.fm’ offers hyperlinks to those streams. Buma/Stemra argued that the websites enable users to listen to the music offered on the streams, and that this should be constituted as a ‘publication’ of the music to the public. The court followed this reasoning, primarily based on the fact that ‘Nederland.nl’ and ‘Op.nl’ not only offer streams or links, but they capture the consumer on their page, by playing the music within their own environment and because this environment, including ads,  stays visible after clicking the links and buttons of radio stations.

In short, the court considers that both websites present the radio-streams or links in the context of their own websites. This is relevant from a copyright-perspective, because the sites thus benefit from the original radio-streams and their corresponding content. 

Furthermore, it became apparent that the owner of both web platforms generates revenues with the content of radio stations that partly broadcast copyrighted musical works of Buma/Stemra’s contracting parties. Since the court found that these actions fall under the scope of ‘publication’ of those works, and no compensation for the use of those works is paid, the operator of Nederland.fm and Op.fm is responsible for violation of the rights of Buma/Stemra’s contracting parties. 

Meanwhile, the collecting society had also argued that the links and streams are ‘reproductions’ of their clients works. This argument was rejected by the court, because the servers of the accused company do not actually contain any of the content in question. Therefore, the judge did not see the activities of the exploiter as ‘reproduction’ of the content offered.

The owner of the two radio platforms was ordered to cease the exploitation of his services within a month after the courts’ ruling, after which a  fine of €1.000,- is imposed for each following day, up to a maximum of €50.000,-. Moreover, the sites have to present Buma/Stemra an overview of revenues and costs in order to establish the damages suffered by Buma/Stemra’s contracting parties. Instead of ceasing his services, the operator of Nederland.fm could also try to acquire a license for the radio-streams he provides, within a month. 

[UPDATE] Nederland.fm has accepted the judgment of the court and is not going to appeal. In the meantime, the company closed license deals with Buma/Stemra and Sena According to Jim Souren, the owner of Nederland.fm, the ruling made clear that the licenses that Buma/Stemra required for embedding or linking to the radio-streams are legal.

To read previous articles Future of Copyright wrote on this topic, click on the titles below: 

• US Court: 'Embedding videos does not result in copyright infringements'
• Embedding of radiostreams leads to copyright questions in Dutch parliament
• Swedish Court of Appeal asks prejudicial questions on hyperlinks to copyright protected content

Sources: Nu.nl, Original Judgement (Dutch), Webwereld. 

Written by: Nathalie Falot