Wednesday, 15 April 2020

An address by any other name? AG Øe advises CJEU to rule that 'address' does not include email and IP addresses

Physical address
Can a rightholder request, under Article 8(2)(a) of the Enforcement Directive, an online platform to provide personal contact details (more precisely: email addresses, telephone numbers, and IP addresses) of users of such platform who have infringed its copyrights?

This, in a nutshell, is the question at the heart of the referral in Constantin Film v YouTube, C-264/19, currently pending before the Court of Justice of the European Union (CJEU).

A few days ago, Advocate General (AG) Saugmandsgaard Øe issued his Opinion, substantially answering in the negative (at least from an EU perspective).

The referral is important for two key reasons ... plus one.

First, because this is yet another case – recent instances being the 2019 Grand Chamber rulings in Funke MedienSpiegel Online, and Pelham [Katposts herehere, and here] – in which the CJEU will be required to balance different fundamental rights: here it is, on the one hand, copyright protection under Article 17(2) of the EU Charter of Fundamental Rights and, on the other hand, respect of private life under Article 8 therein.

Second, because the question of whether online platforms and intermediaries can be required to hand over users-infringers’ details has received different responses in different jurisdictions.

The +1 reason has not to do directly with this referral, but rather with the fact that the AG in this case is the same who will be tasked with providing an Opinion - initially scheduled for publication on 26 March last and now scheduled for release on 15 July - in yet another pending referral concerning YouTube: C-682/18 [Katpost here]. That case, as readers may remember, concerns whether YouTube (1) does directly perform copyright-restricted acts (acts of communication to the public under Article 3 of the InfoSoc Directive) when it gives access to user-uploaded content and (2) can rely on the hosting safe harbour under the e-Commerce Directive. Whilst both questions might now seem to have been overcome by the adoption of Article 17 of the DSM Directive, which received the green light from the Council exactly a year ago today [happy birthday!, says Merpel], that referral remains a very important one for several reasons.

Going back to C-264/19, let’s see how AG Øe reasoned, and what the implications of his Opinion might be.

Background

There is not much to add re the background to this case beyond what is stated above: the dispute between film producer Constantin Film [a company that has been party to some topical recent CJEU cases, including: the referral concerning availability of blocking injunctions under EU copyright law - here; and the interpretation of the absolute ground for refusal/invalidity concerning immoral signs under EU trade mark law - here] and YouTube and its parent company Google arose further to the refusal, by the latter, to disclose details of users who had uploaded on YouTube unlicensed full-length versions of Constantin Film’s productions Parker and Scary Movie 5.

Further to the dismissal of Constantin Film’s action at first instance and its (very) partial victory on appeal, the German Federal Court of Justice [Germany is a country where the issue of disclosure of infringers’ information has proved particularly thorny] stayed the proceedings and asked the CJEU whether the information requested by Constantin Film would be covered by Article 8(2)(a) of the Enforcement Directive. 

This provision states that the competent judicial authorities may order the disclosure of the ‘names and addresses’ of certain categories of persons who have a connection with the goods or services which infringe an IP right.

As mentioned, AG Øe believed that this would not be the case.

The Opinion

In order to justify his conclusion, the AG considered at the outset that:
  • As there is no reference to the laws of Member States, the notion of ‘names and address’ in Article 8(2)(a) is, unsurprisingly, an autonomous concept of EU law, which must receive uniform interpretation and application throughout the EU territory; and
  • As there is no definition of ‘names and addresses’ the relevant meaning must be that in everyday language, by also taking into account the context in which the phrase appears and the objectives of the Enforcement Directive.
From all this it would follow that:
  1. The everyday meaning of ‘addresses’ is only that of postal address, so that neither email addresses nor IP addresses would fall within the definition thereof;
  2. The notion of telephone number falls under neither the concept of name nor that of address.
Checking the mail
With particular regard to 1., the AG - to conclude that email and IP addresses would not fall within the notion of ‘addresses’ - referred to the preparatory works to the Enforcement Directive and noted that other EU legislation that intends to include email and IP addresses in its scope expressly refers to them: “there are no examples of EU legislation where the terms ‘names and addresses’, used alone and in a general context, refer to the telephone number, IP address or email address”, concluded the AG.

AG Øe also addressed Constantin Film’s argument that the purpose of Article 8 of the Enforcement Directive is to enable the holder of IP rights to identify the persons mentioned in that provision. As such, it should be interpreted in the sense of encompassing any information that makes it possible to identify those persons. According to the AG,
to adopt that interpretation would be tantamount to the Court rewriting that provision. I understand of course that a rightholder such as Constantin Film Verleih would like Directive 2004/48 to be amended to enable it to identify possible infringers more easily in the specific context of the internet. However, rewriting that legislation falls not to the Court, but to the EU legislature.
The AG rejected what he called a a ‘dynamic’ interpretation of the provision [this is something that other AGs, notably AG Szpunar, have instead been favouring in some of their copyright opinions; see, eg, here], holding that the provision – in light of its literal wording and history - would leave no room for such a reading. 

He thus “wholeheartedly” agreed with the Opinion of AG Bobek in C-220/15:
In accordance with the prohibition of contra legem interpretation and the principle of the separation of powers, 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’.
Albeit that one of the objectives of the Enforcement Directive and, with that, Article 8 therein [see C-580/13 - here] is to ensure a high level of protection of IP, this legislation also seeks to strike a balance between copyright protection (which is not absolute), users’ interests and rights, and the public interest.

The information that Constantin Film requested YouTube to disclose would qualify as personal data under the GDPR (and, before that, Directive 95/46). If the Court followed the interpretation of Article 8(2) as advanced by Constantin Film, it would upset “the balance that was struck by the EU legislature in such a way as to favour the interests of holders of intellectual property rights.”

All this said, the AG noted that the Enforcement Directive is [regrettably, I’d say] a measure of minimum harmonization. This means that Member States might (though they are not obliged to) “address that dynamic concern by granting rightholders ‘rights to receive fuller information’.”

"Checking" the emails
Comment

The Opinion of AG Øe is overall well-reasoned, though it appears too formalistic in both its substance and outcome. 

Limiting the notion of ‘address’ to physical addresses might appear justified in light of the fact that other EU legislation that encompasses email and IP addresses expressly refers to them, though it is difficult to see how this could be regarded as proof that the Enforcement Directive limits the notion of 'addresses' to physical addresses. 

Even more importantly, it is questionable that the everyday meaning of ‘address’ is only that of physical address. To support his conclusion, the AG referred to the Dictionnaire de l’Académie française, which defines ‘adresse’ ('address') as “the designation of the place where you can reach someone”. 

But why can’t that 'place' be electronic rather than physical?

If one also consults other language dictionaries, it is indeed apparent that the notion of address might be also intended in this way. 

For instance, the Italian word for ‘address’ is ‘indirizzo’, which well-known Treccani also defines as “the complex of alphanumeric data through which it is possible to send a person an email” (my  own translation from Italian). 

Similarly, the Cambridge Dictionary does not limit the notion of ‘address’ to physical addresses: the notion may also refer to “a series of letters and symbols that tell you where to find something on the internet or show where an email is sent to” or “the place where a piece of information is stored in a computer's memory”.

In sum: the everyday meaning of address may also encompass email and IP addresses. Yet, the AG Opinion does not consider this as an actual possibility if not in the context of a hypothetical ‘dynamic’ interpretation of the provision. 

However, just looking at the well-known dictionaries mentioned above, there seems to be no need for any such 'dynamic' interpretation: a simple, literal interpretation would allow one to conclude that the concept of ‘address’ is not limited to physical addresses.

Let’s now see what the CJEU decides but, if it is true that Article 8 is indeed limited to physical addresses, the possibility that Member States provide rightholders with the right to receive ‘fuller information’ may be indeed of little – if any – consolation for rightholders. 

[Originally published on The IPKat on 15 April 2020]