Respect of family life cannot be abused to trump copyright protection, says AG Szpunar

Clearly looking at something very interesting

While it is true that Member States retain significant freedom in devising relevant procedures for repressing copyright infringements and awarding damages, Article 8 of the InfoSoc Directive requires resulting sanctions and remedies be effective, proportionate and dissuasive. This provision is in line with what also Article 3 of the Enforcement Directive mandates.

In this sense, the question that arises – and has actually arisen – is whether it is 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 that has also had access to such connection.

In a nutshell, this is the issue at stake in Bastei Lübbe C-149/17, a reference for a preliminary ruling from the District Court Munich I (Germany) arisen 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 Court of Justice of the European Union (CJEU) for guidance.

This morning Advocate General Szpunar delivered another interesting Opinion [not yet available in English], in which he advised the CJEU to rule 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 EU Charter.

Let’s see a bit more in detail how the AG reasoned.

The EU framework

First, AG Szpunar observed that Article 8 of the InfoSoc Directive is rather laconic when it comes to measures aimed at guaranteeing the respect of the economic rights harmonized therein. However, it would be a mistake to consider Article 8 of the InfoSoc Directive in its isolation, because it is [the translation from Italian is mine] “part of the harmonized system of protection of intellectual property rights provided by Directive 2004/48. Such system goes beyond the mere procedural freedom of Member States, imposing on them concrete obligations the respect of which, including their procedural aspects, falls within the control of the Court, which goes beyond the traditional control of the principles of equivalence and effectiveness.” [para 27]

It follows that, if Article 8(2) of the InfoSoc Directive, complemented and clarified by Article 13(1) of the Enforcement Directive, envisages the right of the copyright owner to seek damages, this implies an obligation for Member States to provide procedural mechanisms that concretely allow rightholders to obtain such compensation.

Family life ...

The case at issue

In the particular context of online copyright infringements, it is difficult for copyright owners to identify the subjects responsible for such infringements and prove their involvement. Only the IP address through which the infringement has been committed may be used as a hint. However, the IP address alone is not proof of the liability of a certain person, especially if the relevant internet connection is accessible to more than one person.

It is essentially because of these difficulties that national laws tend to relax the burden of the proof in such cases. The introduction of a presumption of liability (like the one under German law) is not mandated by EU law. However, where it exists, such presumption must be applied in a coherent and effective fashion: such measure could not fulfil its objective if it were too easy to overcome the presumption of liability, thus leaving the subject damaged by the infringement without any other possibility to enforce his rights and claim compensation for the damage suffered.

Fundamental rights

Turning to fundamental rights, the AG recalled that the status of the Charter is that of primary source of EU law. The application of the provisions through which Member States have transposed the InfoSoc and Enforcement Directives into their own legal regimes is thus bound to respecting the provisions of the Charter.

In a scenario like the one at issue, in which different fundamental rights are in conflict with each other, it is for the national courts to provide an appropriate balance. In any case, it is necessary to guarantee the respect of the “essential content of the fundamental rights at issue” [para 38].

At this point the AG drew an interesting parallel with banking secrecy, when he recalled that in Coty Germany the CJEU held that a bank cannot invoke secrecy to avoid disclosing the details of an account holder, when such details would allow one to enforce his own IP rights.

... IP protection

The same reasoning may be applied here: if one was able to invoke Article 7 of the Charter to avoid having to disclose the names of those who might have used the connection, then the copyright owner would be deprived of his IP right. In any case, should a national court deem such intrusion into one’s own right to family life inadmissible, then the owner of the internet connection should be presumed liable for the relevant infringement, insofar as the copyright owner has not other means to identify the actual infringers.

The AG also touched upon the issue of abuse of rights within Article 54 of the Charter, noting that it is for the national court to determine whether Strotzer has abused his right to family life by invoking it, not to protect his own family members, but rather to elude his own liability for the infringement.

Comment

The most interesting aspect of the Opinion is probably the part in which the interplay between different fundamental rights is discussed.

In the CJEU case law on copyright the fundamental rights angle has become increasingly relevant, though it has arguably not been subject to particularly in-depth analysis by the Court. Decisions like Luksan and Telekabel refer for instance to the EU Charter, but in such a way that extracting guiding principles is not straightforward.

In this sense, this latest Opinion of AG Szpunar is helpful in understanding how IP protection should be seen and balanced against conflicting fundamental rights.

While the AG confirmed that different rights are ranked on the same level, he focused his attention on two key aspects: first, that any assessment should consider whether the rights at stake would be deprived of their essential content; secondly, that a fundamental right might not be invoked to safeguard a legitimate and genuine right, but rather to avoid liability towards a third party whose fundamental right has been infringed. A behaviour of this kind should be deemed an abuse of rights and, as such, be considered not deserving of protection. 

[Originally published on The IPKat on 6 June 2018]