The German publisher Bastei Lübbe seeks, before the Landgericht München I (Regional Court, Munich I), monetary compensation from Mr Michael Strotzer on account of an audio book in which it holds the copyright and related rights being shared, for the purpose of downloading, with an unlimited number of users of a peer-to-peer internet exchange by means of an internet connection owned by Mr Strotzer.
Mr Strotzer denies having himself infringed copyright. Furthermore, he maintains that his parents, who live in the same household, also had access to that connection without, however, providing further details as to when and how the internet was used by his parents. According to the Landgericht München I, it is apparent from the case-law of the Bundesgerichtshof (Federal Court of Justice, Germany) that, having regard to the fundamental right to protection of family life, such a defence is sufficient under German law to exclude the owner of the internet connection from liability.
In that context, the Landgericht München I asks the Court of Justice to interpret the provisions of EU law on the protection of intellectual property rights.
In today’s judgment, the Court answers that EU law precludes national legislation (such as that at issue, as interpreted by the relevant national courts) under which the owner of an internet connection used for copyright infringements through file-sharing cannot be held liable to pay damages if he can name at least one family member who might have had access to that connection, without providing further details as to when and how the internet was used by that family member.
The Court considers that a fair balance must be struck between the various fundamental rights, namely the right to an effective remedy and the right to intellectual property, on the one hand, and the right to respect for private and family life, on the other.
There is no such fair balance where almost absolute protection is guaranteed for the family members of the owner of an internet connection, through which copyright infringements were committed by means of file-sharing.
If a national court before which a tortious action has been brought cannot require, on application of the claimant, that it be provided with evidence relating to the opposing party’s family members, proving the alleged copyright infringement and who was responsible for it are rendered impossible, which, consequently, seriously infringes the fundamental rights to an effective remedy and to intellectual property, as enjoyed by the copyright holder.
That would not, however, be the case if, for the purposes of preventing what was regarded as an unacceptable interference with family life, rightholders had at their disposal another effective remedy, for example, by which, in such a situation, the owner of the internet connection in question could, consequently, be held liable in tort.
In addition, it is, ultimately, for the Landgericht München I to determine whether, if applicable, there are, in the national law concerned, any other means, procedures or remedies which would allow the competent judicial authorities to order that information necessary for proving, in circumstances such as those at issue in that case, copyright infringement and who infringed it be provided.
Judgement of the CJEU C-149/17 of October 18, 2018
Source: press release of the CJEU no. 158/18 of October 18, 2018
