Dr David Eyre

November 2018

Background

Decision C-149/17 relates to litigation between Bastei Lübbe, a German phonogram producer and Michael Strozer regarding infringement of an audiobook via an internet connection to which Strozer and his parents shared access.

The court in Munich, Germany that considered the initial infringement appeared minded to hold Strozer liable by means of a presumption under German law. However, conflicting decisions of Germany’s Federal Court of Justice gave them pause and they decided to refer the case to the CJEU to ascertain the correct and overlapping interpretations of:

(i) the enforcement provisions of the InfoSoc Directive (Articles 8(1) and (2); and

(ii) the term ‘effective’ as recited in Article 3(2) of the Enforcement Directive ;

as balanced with the requirements of the EU Charter of Fundamental Rights regarding:

(iii) the right to the protection of private and family life ( Article 7 of the Charter); and

(iv) the needs of copyright protection ( Article 17(2) of the Charter).

The Judgement

Existing Copyright Enforcement Provisions

The court noted that a primary objective of the InfoSoc Directive is “to establish a high level of protection of copyright and related rights, since such rights are crucial to intellectual creation” (InfoSoc Directive, recital 9; C-149/17 , paragraph 30).

The CJEU also noted that this objective was to be achieved by EU Member States providing appropriate forums for challenging infringements as well as appropriate sanctions and remedies for infringement (as set out in InfoSoc Directive Article 8 (1) and (2)).

In the vein of enforcement of copyright the CJEU referred to the objective set out in recital 10 of the Enforcement Directive that is intended to ensure a high, equivalent and homogeneous level of protection for intellectual property rights in the internal market. To achieve this the measures and remedies made available by the Member States should be effective, proportionate and dissuasive.

Existing Fundamental Rights

Consideration of the right to a private and family life that is protected under the EU Charter of Fundamental Rights arises in this case because the Internet connection that was used to infringe copyright in the audiobook was shared by the alleged infringer with his parents.

The Charter also states that a fair balance must be struck between the various fundamental rights and that any limitation must still respect the essence of the rights and freedoms set out in the Charter.

The Required, Fair Balance

Thus, the thrust of the court’s consideration is balancing whether the right to a private and family life trumps the provisions for pursuing protection of copyright. If the right to a private and family life means that the identity of the user of a shared Internet connection cannot be ascertained then it will not be reasonably possible to demonstrate on the balance of probabilities who the true infringer is. Under these circumstances family members of the owner of an Internet connection would, effectively, be granted absolute protection from copyright infringement. However, this clearly does not square with the concept of copyright as a strong intellectual property right protected by provisions that are effective, proportionate and dissuasive.

Accordingly, the CJEU found that national legislation “cannot […] be considered to be sufficiently effective and capable of ultimately leading to effective and dissuasive sanctions against the perpetrator of [a] infringement” if a copyright holder has no means of gathering information as to the true identity of an infringer (cf C-149/17 , paragraph 52).

Allowable Legislation in Member States

Thus, regarding gathering evidence of copyright infringement, the CJEU stated that the Enforcement Directive “must be interpreted as meaning that Member States must, in an effective manner, enable the injured party to obtain the evidence within the control of the opposing party necessary for supporting its claims, provided that providing such evidence respects the protection of confidential information” ( C-149/17 , paragraph 41).

Thus the InfoSoc and Enforcement directives “must be interpreted as precluding national legislation [by which] the owner of an Internet connection used for copyright infringements through file-sharing cannot be held liable to pay damages if he can name at least one family member who might about access to that connection, without providing further details as to when and how the Internet was used by that family member”, i.e. the owner of the Internet connection cannot escape liability if they do not provide evidence demonstrating that it was not they who committed the copyright infringement (cf C-149/17 , paragraph 55).

Conclusion

Thus the CJEU have defined a balance between the right to a family and private life and the rights of copyright holders to demonstrate precisely who has infringed their copyright. This has been done by requiring that national legislation be precluded if prevents evidence gathering with respect to copyright infringement by one or more family members who share an Internet connection. Thus a family member who infringes copyright does not escape liability because another family member had access to the Internet connection used for the infringement.

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