21 July, 2020

My Digital Home - CJEU Decides Whether IP Addresses, Email Addresses and Phone Numbers are 'Addresses' under EU Copyright Law

The Internet provides a great deal of anonymity and enables those who want to infringe IP rights, including copyright, to often do so without any repercussions. Sometimes, however, companies will pursue infringers, and the first step in any litigation involving any degree of anonymity is to establish who the infringer is and where they reside. In an online environment an individual's "address" is difficult to establish, but it is possible to track them down using the users' IP addresses (which, in brief, identifies the computers used to connect to a website or other online service). Even though legislation has been conceived during this time, whether an IP address amounts to an 'address' and is therefore something that needs to be disclosed by ISPs is unclear; however, the CJEU tackled this question earlier this month. 

The case of Constantin Film Verleih GmbH v YouTube LLC concerned the movies ‘Parker’ and ‘Scary Movie 5 over which Constantin had the exclusive rights to. The movies were uploaded in their entirety onto YouTube sometime in 2013 and 2014 by users of the website and viewed thousands of times. When materials are uploaded to YouTube the users will have to register on it, and provide certain details to YouTube including contact information and their age (particularly when posting material over 15 minutes long). YouTube and Google also logs the users' IP addresses under their T&Cs during this time. Constantin pursued YouTube (and Google) for the IP addresses and other details of the users who uploaded the movies onto the service in order to pursue them for copyright infringement - a request that YouTube declined, with the matter ending up in the CJEU after litigation in the German courts.

The CJEU was issued two questions, which it dealt with together, summarising them as asking "...whether Article 8(2)(a) of Directive 2004/48 must be interpreted as meaning that the term ‘addresses’ covers, 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"

Article 8 stipulates that third parties must provide the 'names and addresses' of infringers if requested by the Claimant. The Court noted that the term 'address' is not defined in the Directive, but should be interpreted in a uniform way across the whole of the EU and not with reference to national legislation, and in accordance with the term's usual meaning in everyday language. 

Rightsholders really sticking it to users
Following the Advocate General's opinion, the Court determined that the term 'address' only covers postal addresses (namely the place of a given person’s permanent address or habitual residence) and not the email address, telephone number or IP address of a user. Nothing in the proposals for the Directive also point to their inclusion within the term.

Further to this the Court discussed that the purpose of the Directive is to strike a fair balance between the interest of the holders of copyright and the protection of the interests and fundamental rights of users of protected subject matter. Article 8 of the Directive specifically aims to reconcile compliance with various rights, among others the right of holders to information and the right of users to protection of personal data. 

Even with the above in mind the Court did mention that it is up to the Member States to enact a potential right to the information within the Directive should they choose to do so. This is enabled by Article 8(3)(a), which expressly provides for the possibility for the Member States to "...grant holders of [IP rights] the right to receive fuller information, provided, however, that a fair balance is struck between the various fundamental rights involved and compliance with the other general principles of EU law". This could include email addresses, telephone numbers or IP addresses of users. 

In summarizing their position, the CJEU concluded that "...Article 8(2)(a)... must be interpreted as meaning that the term ‘addresses’ contained in that provision 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".

The decision highlights the CJEU's inclination to protect users' rights alongside the rights of copyright holders, even if this means that they are unable to pursue particular users. While the matter remains in the hands of the legislatures of Member States, giving rightsholders carte blanche to users' information could be hugely detrimental to users' rights and cause rafts of information to be floating around that contain incredibly sensitive information. Pursuing the uploader of a video on YouTube might not even be monetarily worth it for rightsholders in the end, however, if the infringement is so detrimental to their business, it might be possible to pursue other avenues of enforcement in those instances. It'll remain to be seen whether Member States enact any freedoms as discussed above, but it would seem highly unlikely given the current state of the World. 

No comments:

Post a Comment

All comments will be moderated before publication. Any messages that contain, among other things, irrelevant content, advertising, spam, or are otherwise against good taste, will not be published.

Please keep all messages to the topic and as relevant as possible.

Should your message have been removed in error or you would want to complain about a removal, please email any complaints to jani.ihalainen(at)gmail.com.