CJEU weighs on liability of owner of internet connection used to infringe copyright

The face of someone keen to share
their Wi-Fi password ...

What can be the nature of the penalties and measures to be taken in copyright infringement cases? More specifically: Is it compatible with EU law to provide that the owner of an internet connection, through which copyright infringements have been committed, may escape liability thereof by indicating, without the need to provide any further details, a family member who has also had access to such connection?

These were the issues at the centre of Bastei Lübbe, C-149/17, a reference for a preliminary ruling from Germany.

Background

The referral was made in the context of litigation between Bastei Lübbe, a German phonogram producer, and Michael Strotzer, the owner of an internet connection through which an infringement was committed in 2010. 

The latter submitted that he had not committed the infringement himself and that his internet connection was sufficiently protected. He also argued that his parents, with whom he lived, also had access to the connection but, as far as he was aware, they had not committed the infringement either. Following dismissal of Bastei Lübbe’s action at first instance on grounds that the defendant could not be deemed to have committed the relevant infringement, the case reached the District Court Munich I.

The Munich court appeared keen on holding Strotzer liable by means of a presumption under German law. However, doubts subsisted in light of certain decisions of Germany’s Federal Court of Justice. Hence, the court decided to refer the case to the CJEU for guidance regarding the correct interpretation of: 

1. Article 8(1) and (2) of the InfoSoc Directive, in connection with Article 3(1) thereof; and
2. the meaning of 'effective' within Article 3(2) of the Enforcement Directive, in particular whether “effective” measures for the enforcement of IP rights are still provided for even when the owner of an internet connection used for copyright infringements is excluded from liability to pay damages if the owner of that internet connection can name at least one family member who, besides them, might have had access to that internet connection, without providing further details, established through appropriate investigations, as to when and how the internet was used by that family member.

The AG Opinion

In his Opinion back in June [Katpost here], Advocate General (AG) Szpunar advised the Court of Justice of the European Union (CJEU) to rule that that EU law does not require to provide, at the national level, a presumption of liability of the owner of an internet connection for copyright infringements committed through such connection. 

However, if national law envisages such presumption to ensure the protection of copyright, this shall be applied coherently to guarantee effective copyright protection. In this sense, the right to family and private life under Article 7 of the EU Charter of Fundamental Rights may not be interpreted in such as way as to deprive copyright owners of any possibility of effective protection of their own intellectual property, the protection of which is mandated by Article 17(2) of the Charter.

The CJEU judgment

Yesterday, the CJEU delivered its judgment, and held that the owner of an internet connection used for copyright infringements through file-sharing cannot be exonerated from liability simply by naming a family member who might have had access to that connection (but read further).

Let's what a bit more in detail how the Court reasoned.

(Cutest) High level of protection

InfoSoc Directive: high level of protection

First of all (unsurprisingly), the Court noted how the primary objective of the InfoSoc Directive (see Recital 9) is to grant a high level of protection of copyright and related rights, since such rights are crucial to intellectual creation. 

In order to achieve said objective, Article 8(1) mandates upon Member States to provide for appropriate sanctions and remedies in respect of infringements of the rights and obligations set out in the InfoSoc Directive. Such sanctions and remedies must be also effective, proportionate and dissuasive. 

Article 8(2) also requires Member States to take the measures necessary to ensure that rightholders, whose interests are affected by an infringing activity carried out on its territory, may bring an action for damages.

Enforcement Directive: harmonization

Then the Court recalled that the objective pursued by the Enforcement Directive (Recital 10) is to approximate the laws of individual Member States in the area of enforcement, in order to ensure a high, equivalent, and homogeneous level of protection in the internal market.

It follows from all this the requirement in Article 3(2) thereof to provide that measures, procedures and remedies made available by the Member States be effective, proportionate, and dissuasive.

Obligations of Member States and national courts

Further to this introductory remarks, the CJEU turned to the specific questions referred. It highlighted how the core of the reference required the Court to explain how an appropriate balance may be struck between the needs of copyright protection (Article 17(2) of the Charter) and effective enforcement (including access to evidence, as per Article 6(1) of the Enforcement Directive) on the one hand, and other fundamental rights, including the right to the protection of private and family life (also protected by the Charter), on the other.

At this point, the Court turned to the obligations of Member States when transposing EU directives into national laws, and those of national courts when interpreting relevant provisions. While the former are required to rely on an interpretation of EU law which allows a fair balance to be struck between the various fundamental rights protected by the EU legal order, the latter have to interpret national law in a manner consistent with those directives, fundamental rights, and the other general principles of EU law.

Article 52(1) of the Charter mandates that any limitation on the exercise of the rights and freedoms recognized by the Charter must respect the essence of those rights and freedoms, and a fair balance be struck between the various fundamental rights.

Kat-balance

Fair balance

It is indeed in light of said fair balance requirement that German legislation at issue in the background proceedings must be assessed.

Article 7 of the Charter provides that 'everyone' (not just family members, who may however enjoy special protection in certain circumstances) are entitled to private life protection. In addition, Article 8(3)(d) of the Enforcement Directive allows Member States to provide for the possibility that the perpetrator of an infringement refuses to provide information which would compel them to acknowledge their own involvement or that of their parents in an infringement of an IP right.

This said, if a national law has the effect of preventing a national court before which a tortious action has been brought from requesting and obtaining evidence relating to the defendant's family members and, thus, proving the alleged infringement of copyright and who was responsible for that infringement, then such law does not strike a fair balance. 

The result, in fact, is that family members of the owner of an internet connection, through which copyright infringements were committed, would be granted absolute protection. On the contrary, copyright enforcement would be ineffective and so would be the sanctions against the actual infringer.  

However, things would be different if the law provided that the owner of the internet connection could be held liable in tort. What EU prohibits is national legislation which provides the owner of an internet connection used for copyright infringements through file-sharing cannot be held liable to pay damages if they can name at least one family member who might have had access to that connection, without providing any further details as to when and how the internet was used by the relevant family member.

Comment

The CJEU judgment has several points of contact with the earlier AG Opinion. The parallel with  banking secrecy in Coty Germany has been instrumental to the particular outcome suggested, first, by the AG, and then achieved by the Court.

Besides the particular details of the case, from a broader perspective the judgment is interesting in that it reiterates some common topoi in CJEU copyright case law (I discuss all this more at length in this forthcoming monograph):

• High level of protection
• Interpretation of EU copyright provisions in light of fundamental rights
• Need to strike a fair balance between different fundamental rights

First, the Court reiterated that copyright is deserving of a high level of protection. This is a standard that the CJEU has relied upon almost invariably every time when deciding a case concerning economic rights and enforcement/remedies, with the result that the outcome of the relevant case would favour an expansive approach to the scope of copyright protection. The principle that protection must be at a high level is stated explicitly in both the InfoSoc Directive (Recitals 4 and 9) and the Enforcement Directive (Recital 10).

Second, the judgment refers to the Charter of Fundamental Rights. Over time, the Court has increasingly referred to the need of interpreting relevant provisions in EU directives in light of fundamental rights. Since the 2007 Treaty of Lisbon the Charter has had status of primary EU law source, on the same foot as the Treaties. The result has been arguably a process of constitutionalization carried out by the CJEU also in the field of copyright, although some critics have considered such process merely cosmetic and underlying a de facto harmonizing agenda on the side of the Court instead.

Third, the obligation to strike a fair balance has also been referred in several cases. Said obligation is imposed on Member States when transposing relevant EU legislation and national authorities and courts when interpreting resulting national provisions. The CJEU made all this clear in decisions like Promusicae, LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten, Bonnier Audio and Others, Deckmyn and Vrijheidsfonds, Coty Germany, and Mc Fadden.