On 18 October 2018, the Court of Justice of the European Union (the "ECJ") held in case C-149/17, Bastei Lübbe GmbH & Co. KG v. Michael Strotzer, that national legislation cannot shield the owner of an internet connection that was used for copyright infringement from liability merely because that owner can name at least one other family member who might have had access to the internet connection.
The case resulted from a reference for a preliminary ruling from the Landgericht München I which asked the ECJ to find an appropriate balance between two conflicting rights, both of which are protected under the Charter of Fundamental Rights of the European Union (the "Charter"): (i) the right to copyright protection, which incorporates the need for effective enforcement; and (ii) the right to the protection of family life.
The main proceedings involved Bastei Lübbe, the owner of copyright in an audio book, and Michael Strotzer, the owner of an internet connection through which the audio book had been illegally shared with an unlimited number of users of a peer-to-peer internet exchange. Mr. Strotzer denied that he had committed the copyright infringement, but also maintained that his internet connection was sufficiently secure. He furthermore asserted that his parents had access to the internet connection but that he did not know whether they had committed the infringement.
Under applicable German law, if it is shown that an internet connection was used to infringe copyright, the owner of that internet connection is presumed to have committed the infringement. However, this presumption can be rebutted by the owner, if he or she can show that other persons had independent access to the internet connection and were therefore capable of committing the infringement. Further, if a family member of that owner had access to the internet connection, the owner can, on the basis of the right to the protection of family life, escape liability merely by naming a family member without being required to provide further details as to how and when the internet connection was used by that family member.
The ECJ was asked to consider whether this regime is compatible with the requirements of Directive 2001/29 of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the "InfoSoc Directive") and Directive 2004/48 of 29 April 2004 on the enforcement of intellectual property rights (the "Enforcement Directive").
In reaching its verdict, the ECJ referred to the statements in the Charter which provide that any limitation on the exercise of rights recognised by the Charter must respect the essence of those rights. The ECJ also noted that the case law had established that a measure which resulted in a serious infringement of a right protected by the Charter was to be regarded as not respecting the requirement that a fair balance be achieved between the rights that must be reconciled.
On this basis, the ECJ held that a national law which makes it impossible to prove who was responsible for a copyright infringement does not achieve a fair balance between the two conflicting rights. The ECJ stated that such a law almost guaranteed an absolute protection for family members of an owner of an internet connection through which copyright infringements were committed, whilst rendering copyright enforcement ineffective. Accordingly, the ECJ held that in such circumstances the rights of the copyright holder to an effective remedy were seriously compromised. Hence, the ECJ found that the German law infringed both the InfoSoc Directive and the Enforcement Directive.
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