Re-cap of the facts
This was a German referral concerning a dispute between Constantin Film Verleih, a German film distributor, and US-based YouTube and its parent company Google Inc. Between June 2013 and September 2014, two films (Parker and Scary Movie 5), in which Constantin Film Verleih had the exclusive rights, were unlawfully posted on YouTube. Both were uploaded in their full-length versions and viewed thousands of times. Constantin Film Verleih therefore requested YouTube to provide it with the following information:
The user's email address
The user's telephone number
The IP addresses used by the user to upload the files and the exact time that user uploaded
The IP address last used by the user to access his/her Google account to access the YouTube platform and the exact time this was done
The case eventually made its way to the Bundesgerichtshof (the German Federal Court of Justice) which essentially asked the CJEU to clarify whether, when a film is unlawfully uploaded onto an online platform, such as YouTube, the Enforcement Directive requires the operator of that online platform to provide only a postal address of the user concerned, but not his/her email, IP address or telephone number.
The CJEU broke down its ruling into four main points:
In relation to the usual meaning of the term 'address', in everyday language, it refers only to the postal address, being 'the place of a given person's permanent address or habitual residence'. Therefore, when that term is used without any further clarification, as is the case in the Enforcement Directive, it does not refer to the email address, telephone number or IP address.
The travaux préparatoires which led to the adoption of the Enforcement Directive, does not contain anything to suggest that the term 'address' was meant to be understood as referring to the email address, telephone number and IP address of the relevant people, in addition to the postal address.
When examining other EU legislation referring to email addresses or IP addresses, it is evident that none of them uses the term 'address' without further details to specifically designate the telephone number, IP address or email address.
The above interpretation in points 2 and 3 is consistent with the purpose of Article 8 (the right to information), taking into account its general objective.
The CJEU qualified its fourth point by reasoning that, even though the Charter of Fundamental Rights (the Charter) enables an IP rightsholder to identify an infringer and take the necessary steps to protect its IP rights, it was nonetheless still in line with the EU legislature, namely Article 8 of the Enforcement Directive. That legislation chose to provide for minimum harmonisation concerning the enforcement of intellectual property rights in general (Hansson – C-481/14) by allowing access only to narrowly defined information i.e. a postal address. In addition,the Enforcement Directive intends to establish a fair balance between, on the one hand, the interests of copyright owners in protecting their rights as enshrined in Article 17(2) of the Charter (right to property) and on the other hand, the protection of the interests and fundamental rights of users of protected content, as well as public interest (Funke Medien, Pelham and Spiegel Online). The CJEU went on to say that the Directive also aims to reconcile compliance with various other rights, such as the right to information and the right of users to the protection of personal data.
The CJEU ended with a reminder that despite all of the above, it is clear from Article 8(3)(a) of the Enforcement Directive that Members States still have the option to grant IP rightsholders the right to receive fuller information, provided they respect the necessary balance between the various fundamental rights involved and compliance with the other general principles of EU law, such as the principle of proportionality.
Taking all of the above into account, the CJEU concluded that the term 'addresses' under the Enforcement Directive 'does not cover, in respect of a user who has uploaded files which infringe an intellectual property right, his or her email address, telephone number and IP address used to upload those files or the IP address used when the user’s account was last accessed'.
It is not surprising that the CJEU followed the AG's opinion so closely, given the AG stated he was 'convinced' that Article 8(2)(a) did not cover any of the extra information requested by Constantin Film Verleih. Some commentators have criticised the ruling as being too literal an interpretation of a directive that came into force over 15 years ago and which does not address modern day society operating in an online world, even more so since the coronavirus pandemic.
To have such a narrow channel by which to contact an infringer is restrictive and it is unlikely that sophisticated infringers would even respond to correspondence by post, which is also a much slower process than corresponding online. Some platforms do not even require users to disclose addresses and some users provide false names and addresses in any case. Although infringers may ignore any communication, whether by post or email.
There are, however, still alternative options available for rightsholders to enforce their rights against the platforms themselves. In reality, this is often the route rightsholders take because it may not be practical to pursue each and every individual infringer. Indeed the new regime under Article 17 of the Copyright Directive (2019/790 - to be implemented by Members States by 21 June 2021) seeks to impose liability on online platforms for infringing videos, music, photos etc uploaded by their users. However, enforcing rights through a platform can be time-consuming and costly.
And let's not forget that the CJEU advised that Member States do have an option to grant rightsholders the right to receive fuller information. It will be interesting to how Member States react to help tackle online infringement going forward and whether they will go that extra step beyond the minimum standards laid down in the Enforcement Directive. In the UK, there is an option to seek a Norwich Pharmacal order for the disclosure of users' information, which was indeed pursued in the original Golden Eye litigation (see also our blog on subsequent litigation – High Court rules on Norwich Pharmacal Orders in file sharing cases and the impact of the GDPR).
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