In a recent reference from Germany, the CJEU has found that national laws cannot exclude liability for copyright infringement in cases where the defendant can name someone else, such as a family member, who might have had access to the internet connection used to send infringing material. (Bastei Lübbe GmbH & Co. KG v Michael Strotzer, C-149/17.)
The publisher Bastei Lübbe owns copyright in various audio books, one of which was uploaded to an external sharing platform, allegedly through Mr Strotzer's internet connection. He denied responsibility, noting that his parents also had access to the connection, though they did not have the book on their computer, were not aware of its existence and did not use the exchange software.
German case law provides that an internet connection's owner is only presumed to have committed an offence if they are the sole person who could have used the connection. Furthermore, they need not provide further information about when and how potential alternative users, such as family members, might have infringed copyright by using the connection. Finding it nevertheless highly likely that Mr Strotzer committed the offence, the Munich Regional Court asked the CJEU whether such case law, by limiting its ability to find alleged infringers liable, satisfies the requirements of Article 8 of the Copyright Directive (2001/29/EC) and Article 3 of the IP Enforcement Directive (2004/48/EC) for member states to provide 'effective' and 'dissuasive' measures, procedures and remedies for dealing with infringements.
In considering the referred question, the CJEU attempted to reconcile:
- the need for adequate intellectual property (IP) protection and effective remedies; with
- the fundamental right to respect for private and family life.
It found that if national legislation, as interpreted by national courts, creates an obstacle to compelling the provision of evidence relating to the opposing party's family members, and this obstacle in turn renders it impossible to prove the alleged infringement and the individual responsible, the requirement to ensure a fair balance between the above competing rights is not met.
The CJEU concluded that consequently, the German national case law was incompatible with both Directives' requirements. However, it considered that this would not be the case if, to avoid interfering with family life, an alternative remedy was open to a rights-holder allowing the internet connection's owner to be held liable. (For full details see the CJEU's judgment here).
This ruling provides an interesting example of the links between fundamental rights and copyright law. In particular, it considers the extent to which the right to respect for private life can hinder the right of IP owners to enforce their rights. In doing so, the CJEU looks at the EU Charter of Fundamental Rights, which seems to be referred to more often in the interpretation of Directives. The ruling also shows that defendants cannot necessarily use fundamental rights to avoid liability where the facts are highly suggestive of infringement.
The case will now return to the German court, which must decide whether its national law provides any other means, procedures or remedies allowing it to order a defendant to provide the further information necessary for proving both an infringement of copyright and the person responsible.
With special thanks to trainee, Chris Eykel, for his contribution to this article.