Copyright directive precludes family-member defence to file-sharing infringement.

On a reference from a German Regional Court, the Court of Justice of the European Union has ruled that the owner of an internet connection used for copyright infringement (in this case, through file-sharing) cannot escape liability simply because another family member might have had access to that connection.[1]

The CJEU held that, under Article 8 of the Copyright Directive, Member States cannot legislate to remove liability for copyright infringement where the defendant can name at least one family member who might have had access to the same internet connection, without having to provide further details on when and how the internet was actually used by that family member.

Background

Bastei Lübbe held the copyright and related rights in the audio version of a book.  Mr Michael Strotzer owned an internet connection, which was used on 8 May 2010 to share the audio book, for the purpose of downloading by an unlimited number of users over a peer-to-peer network.

Bastei Lübbe warned Mr Strotzer by letter of 28 October 2010 to cease and desist from infringing copyright.  That warning notice was unsuccessful, and Bastei Lübbe issued proceedings for damages for copyright infringement against Mr Strotzer.  Mr Strotzer denied having infringed copyright himself and stated that his internet connection was sufficiently secure.  In addition, he asserted that his parents, who lived in the same household, also had access to the same connection, but that to his knowledge they did not have the work in question on their computer, were not aware of the existence of the work and did not use the online exchange software.  Further, Mr Strotzer said that his computer was switched off at the time when the infringement in question was committed.

The Munich Local Court[2] dismissed the action, on the ground that Mr Strotzer could not be held liable for damages as a result of copyright infringement through file-sharing, because his parents had access to the same connection and so could also have committed the copyright infringement.

Bastei Lübbe appealed against the decision of the Local Court before the Regional Court I in Munich.[3]  The Regional Court considered that Mr Strotzer was very likely to have committed the infringement.   Yet it also considered itself bound by the case law of the German Federal Court of Justice.[4]  Under German case law, Mr Strotzer’s defence was sufficient to exclude him, as the owner of the internet connection, from liability.  Under German law, it is for the applicant to allege and prove the infringement of copyright and, having regard to the fundamental right to protection of family life, there is a presumption that the owner of an internet connection has committed an infringement, provided that no other person could use the internet connection at the time of the infringement.  Accordingly, if a family member of the owner has access to the connection, the owner can escape liability simply by naming the family member, without being required to provide further evidence.

In light of this, the Regional Court decided to refer the case to the CJEU to clarify whether EU law precludes national legislation under which the owner of an IP address used for copyright infringements through file-sharing cannot be held liable if the owner can name at least one family member who might have had access to that connection, without providing any further details as to how and when the connection was used by that family member.

The two questions that the Regional Court referred to the CJEU were whether:

• Article 8(1) and (2), in conjunction with Article 3(1), of the Copyright Directive (2001/29/EC) should be interpreted as meaning that “effective and dissuasive sanctions for infringements of the right to make works available to the public” are still provided for; and
• Article 3(2) of the Enforcement Directive (2004/48/EC) should be interpreted as meaning that “effective measures for the enforcement of intellectual property rights” are still provided for,

even when (in either case) the owner of the internet connection used for copyright infringement through file-sharing is excluded from liability to pay damages, if the owner can name at least one family member who, besides the owner, might have had access to the internet connection, without providing further details, established through appropriate investigations, as to when and how the internet was used by that family member.

Opinion of the Advocate General

In June 2018 Advocate General of the European Court gave his opinion on the questions referred to the CJEU stating that “the right to respect for family life recognized in Article 7 of the Charter of Fundamental Rights of the European Union cannot be interpreted in such a way as to deprive copyright holders of any real possibility of protecting their intellectual property rights enshrined in Article 17(2) of the Charter of Fundamental Rights”.[5]

CJEU decision

In the light of the German case law, and to ensure a consistent implementation of Directives 2001/29 and 2004/48, the CJEU felt it appropriate to answer both questions together.

First, the CJEU noted that the principal objective of Directive 2001/29 is to establish a high level of protection of copyright and related rights, since such rights are crucial to intellectual creation.  The court further noted that, in accordance with Article 8(1) of Directive 2001/29, Member States are to provide for appropriate sanctions and remedies for any infringements, with such sanctions to be effective, proportionate and dissuasive.  Under Article 8(2) Member States are to take the measures necessary to ensure that rights-owners have the ability to bring an action for damages if their interests are affected by an infringement in that Member State’s territory.  In addition, the CJEU noted that the objective pursued by Directive 2004/48 is to ensure that Member States enforce intellectual property rights in a way that ensures a high, equivalent and consistent level of protection across the internal market.

Following the AG’s opinion, the CJEU held that that a fair balance must be struck between the various fundamental rights, namely the right to an effective remedy and the right to intellectual property, on the one hand, and the right to respect for private and family life, on the other.

The CJEU noted that Article 6(1) of Directive 2004/48, must be interpreted to mean that Member States must enable rights holders to obtain any necessary evidence within the control of the alleged infringing party for supporting its claims.  The German legislation at issue in the main proceedings, however, provides that if a family member of the owner of an internet connection had access to that connection, the owner may escape liability for copyright infringement simply by naming a family member without being required to provide any further evidence as to when and how the connection was used by that family member.

In the CJEU’s view, there was no fair balance where almost total protection was guaranteed for the family members of an owner of an internet connection through which copyright infringements were committed by means of file-sharing.  The CJEU considered that, if a national court before which an infringement action has been brought cannot require, on the claimant’s application, that it be provided with evidence relating to the opposing party’s family members, then proving any alleged copyright infringement and the party responsible for it would be impossible.  That, in turn, would seriously infringe the fundamental rights to an effective remedy and to intellectual property enjoyed by the copyright owner under Directive 2001/29.

The CJEU accepted that would not be the case if, for the purposes of preventing what was regarded as an unacceptable interference with family life, rights-holders had at their disposal another effective remedy, allowing them, in particular, in such a situation, to have the owner of the internet connection in question held liable in tort.  The CJEU noted that it would be down to the relevant national court to establish whether there were other means or remedies that would allow the competent judicial authorities to order the disclosure of information necessary for proving (in circumstances such as those in this case) an infringement of copyright, and who was liable for it.

On that basis the CJEU concluded that EU law does preclude national law under which the owner of an internet connection used for copyright infringements cannot be held liable to pay damages if the owner can name at least one family member who might have had access to that connection, without providing any further evidence.

Comment

The CJEU judgment confirms that blaming another family member for illegal file-sharing should not release the owner of an internet connection used for copyright infringements through file-sharing from liability – and rightly so.

Rights-holders tend now to attack the source or, in a peer-to-peer scenario, the facilitator of the infringements, such as an online sharing platform like The Pirate Bay.[6]  Yet the notion that an individual could escape liability for copyright infringement, simply by saying that a parent has access to the same internet connection and so could have been the perpetrator (while refusing to disclose any further evidence), would be an onerous position for rights-holders.  It would also be contrary to the requirements of the Enforcement Directive, and in particular Article 6(1), according to which, the CJEU said, 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”.

A national provision guaranteeing an almost absolute protection for family members in this situation prevented the copyright owner from obtaining evidence, and so it did not provide a sufficiently effective remedy against infringers.  Such a provision should only stand if the copyright owner had another effective way of obtaining a remedy for infringement under the relevant national laws.