Quick re-cap on the law
Article 8(2)(a) of the Enforcement Directive (Right of Information) essentially allows the competent judicial authorities to order the disclosure of the ‘names and addresses’ of certain categories of people who have a connection with the goods or services which infringe an IP right.
This was a referral from the Bundesgerichtshof (the German Federal Court of Justice) and the dispute was 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 for each of the users who had unlawfully uploaded the works:
- 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/YouTube account and the exact time this was done
There was no doubt from the referring court that Constantin Film Verleih was entitled to information as prescribed by Article 8 of the Enforcement Directive. The issue was rather the extent of the information to be provided.
The AG stated upfront that he was 'convinced' that Article 8(2)(a) did not cover any of the extra information requested by Constantin Film Verleih (listed in the above bullets).
He stated that as the concept of 'names and addresses' was not defined in the Enforcement Directive, according to settled EU case law, the meaning and scope of the words must be determined by considering their usual meaning in everyday language, whilst also taking into account the context in which they occur and the purpose of the rules of which they are part.
He thought there was little doubt in everyday language that the concept of a person's 'address' covers only a postal address, as had been submitted by YouTube and Google. According to the AG, this interpretation was also reinforced by a French dictionary definition of 'adresse', which specifically referred to a 'place' - 'la designation du lieu où l'on peut joinder quelqu'un' (the designation of the place where you can reach someone).
He did not feel the need to justify why telephone numbers should not be included in the concept of persons' 'names and addresses' but did feel the need to explore the terms 'email and IP address' more closely. Again, the starting point in the interpretation process was the meaning in everyday language of the word 'address', which the AG had already determined was the postal address only. This was especially so given the context of Article 8(2)(a) of the Enforcement Directive which the AG described as 'general', i.e. going beyond the strict context of the internet.
YouTube and Google had also submitted that where other EU legislation had intended to refer to an email or IP address, it had done so expressly. The AG agreed with this and confirmed that to his knowledge, there were no examples of EU law where the terms 'names and addresses' used alone and in a 'general' (as opposed to internet) context, referred to telephone numbers or IP or email addresses.
Constantin Film Verleih's 'dynamic' and 'teleological' interpretation, on the other hand, was that it was more about the actual purpose of Article 8 and on a more general level, the objectives of the Enforcement Directive. In Constantin Film Verleih's view, the purpose of Article 8 of the Directive was 'to enable the holder of intellectual property rights to identify the persons mentioned in that provision" and that effectively means the provision refers to 'any information that makes it possible to identify" those people, which could include telephone numbers, email or IP addresses, or even bank details. The AG gave short shrift to this argument and said that adopting such an interpretation would be 'tantamount to the Court rewriting that provision'. He quoted AG Bobek from his Opinion in Commission v Germany that 'a dynamic or teleological interpretation is only possible where 'the text of the provision itself [is] open to different interpretations, presenting some degree of textual ambiguity and vagueness''. However, he did not consider that to be the case in this instance.
In terms of Constantin Film Verleih's argument about considering the overall objectives of the Directive, the AG said it was important to bear in mind the balance that must be struck between the varying interests of the affected parties. Whilst the Directive aims to ensure a high level of protection for IP, it was clear that in doing so, it could not hamper, for example, the protection of personal data guaranteed under the Charter of Fundamental Rights in the EU. As such, it was not possible to alter the scope of the terms used in Article 8(2) because it would upset that balance intended by the legislature.
The AG noted that a 'dynamic' interpretation, such as that put forward by Constantin Film Verleih, was also not appropriate in this case because Article 8(3) of the Enforcement Directive expressly provided for the possibility for Member States to address the issue by granting rightsholders' 'rights to receive fuller information'. Therefore, it was not necessary to adopt the claimant's 'dynamic' interpretation to bring it up to date with 'new behaviour on the internet….since Member States have the power to adopt additional measures targeting that behaviour'.
It may seem sensible and obvious to some that the AG reached the conclusion that he did but in a world where technology is moving at such a fast pace, it may well be necessary to adopt a more 'dynamic' interpretation of EU law in order to keep up with these technological advances.
It is hard to see how, however, the CJEU will be able to divert that much from the AG advice based on some of his reasoning, but it will be interesting to see whether there will be a more in depth analysis of whether the term 'address' could be stretched to include email and IP addresses in view of the way we live today in such a digital environment. The argument that the everyday French dictionary definition of 'adresse' refers to a physical place only where you can reach someone surely leaves room for further analysis – especially in this rather virtual world we now find ourselves living in. As people use 'DX boxes' as an alternative address where people can reach them, is an email address or an IP address perhaps just a modern-day equivalent?
The CJEU will also find itself expanding its portfolio of cases dealing with the interplay between IP rights and fundamental freedoms (cast your minds back to Spiegel Online, Pelham and Funke Medien). This time, it will be a fine balancing act between ensuring the protection of copyright on the one hand (Article 17(2) of the Charter) and the protection of personal data on the other (Article 8 of the Charter).
We look forward to reporting back on this case when the final CJEU ruling is published.
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