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The law of copyright and fundamental rights

The ruling in Case C-149/17 Bastei Lübbe v Michael Strotzer is the most recent addition to a series of CJEU judgments that address the balancing of fundamental rights in the context of the enforcement of intellectual property rights (IPRs).

The EU’s most senior court expressed serious doubt about a provision in domestic German law that constituted an exemption from copyright liability.

The CJEU also took the opportunity to re-emphasise the need to reconcile the requirements of the protection of several fundamental rights contained in the Charter of Fundamental Rights of the EU.  

More specifically, the CJEU stated that, when transposing directives, member states must “take care to rely on an interpretation of them that allows a fair balance to be struck between the various fundamental rights protected by the EU legal order” (paragraph 45).

Third, Bastei Lübbe adds to the corpus of case law on the balancing of fundamental rights in the context of the enforcement of IPRs.

Lastly, the judgment also demonstrates that the rights within the Charter have limitations and – on this occasion – the right protecting intellectual property was given greater weight by the CJEU than the right to a private life.

Press rewind

The judgment was delivered by the CJEU on 18 October 2018. The referral to the CJEU was made by the Landgericht München (the Regional Court, Munich).

In essence, the preliminary ruling concerned the interpretation of certain provisions in two important EU directives that are relevant to copyright law – the Information Society Directive (2001/29/EC) and the Directive on the Enforcement of Intellectual Property Rights (2004/48/EC).

The main proceedings (in Germany) concerned an action for damages as a result of alleged copyright infringement through file-sharing.

The claimant, Bastei Lübbe (a German media company/trade book publisher), is the holder, as a phonogram producer, of the copyright and related rights in the audio version of a book.

Peer-to-peer

The defendant, Mr Strotzer, is the owner of an internet connection through which, in 2010, the audio book was shared illegally with an unlimited number of users of a peer-to-peer internet exchange.

An IT expert correctly attributed the IP address in question to the defendant.

In essence, the defendant relied on paragraph 97 of the 1965 German Law on Copyright and Related Rights.

That particular provision, as amended in 2013 and interpreted by the Federal Court of Justice, is capable of providing an exemption from liability to a defendant owner of an internet connection where the relevant internet connection is not sufficiently secure, or was knowingly made available to other persons.

Pertinently, a family member of Strotzer had access to the defendant’s internet connection.

Having regard to the fundamental right to the protection of family life, Strotzer could escape liability by merely naming a family member, without being required to provide further details as to when and how the internet was used by that family member.

Pause

The CJEU considered whether the German copyright exemption was compatible with article 8(1) of the Information Society Directive, which refers to “appropriate remedies” and “effective and dissuasive sanctions against perpetrators” in the context of copyright infringements.

In addition, the CJEU also asked whether it was compatible with article 3(1) and (2) of the Enforcement Directive, which refer to “effective and dissuasive measures, procedures and remedies for the purposes of ensuring enforcement of the IPRs”.

Protection of family life

The catalyst in the judgment, for the CJEU’s statements on the need to balance or reconcile several fundamental rights, was the issue of evidence or, more specifically, evidence within the control of the defendant.

Strotzer was invoking the fundamental right to the protection of family life to prevent the claimant from obtaining the evidence necessary to support its claims.

But the CJEU was quick to refer to article 6(1) of the Enforcement Directive. This provision relates to evidence lying in the control of the defendant. It permits the adjudicating court to “order that such evidence be presented by the defendant, subject to the protection of confidential information”.

The court also referred to recital 20 of the same directive. This recital states that evidence is “an element of paramount importance for establishing the infringement of IPRs and that it is appropriate to ensure that effective means of presenting, obtaining and preserving evidence are available”.

Fast forward

This ‘clash’ between the fundamental right to the protection of family life and article 6(1) gave the CJEU a compelling reason to consider more broadly the whole notion of balancing (or reconciling) various Charter fundamental rights.

The CJEU’s statements on the importance of balancing different Charter rights constitutes one of the most compelling parts of this judgment (paragraphs 43 to 47).

Two fundamental rights were concerned. First, the right to an effective remedy and the right to intellectual property (article 17(2) of the Charter) and, second, the right to respect for private and family life (article 7).

When analysing the reconciliation of various fundamental rights in the context of evidence and evidence-gathering, the CJEU referred to article 6(1) and recital 20 of the Enforcement Directive.

According to the CJEU, article 6(1) requires member states, in an effective manner, to enable the injured party to obtain the evidence within the control of the opposing party (the alleged defendant) that is necessary for supporting its claims.

This is subject to confidential information being protected in the process. The CJEU went on to observe that the fundamental right to the protection of family life is, in the context of the national legislation at issue, an obstacle preventing the injured party (the rights holder) from obtaining the evidence necessary for supporting its claims from the opposing party.

Fair balance

Referring to its own ruling in C-580/13 Coty Germany, the CJEU stated that EU law requires that, when transposing directives, member states must take care to rely on an interpretation of them that allows a fair balance to be struck between the various fundamental rights protected by the EU legal order.

Subsequent to the transposition and when implementing the measures transposing the directives, the authorities and courts of member states must interpret their national law in a manner consistent with those directives.

In addition, they must also ensure that they do not rely on an interpretation of them that would be in conflict with those fundamental rights or with the other general principles of EU law.

The CJEU then went on to address any limitation on the exercise of the rights recognised by the Charter. Referring to article 52(1) of the Charter, the court stated that the provision provides that “any limitation on the exercise of the rights and freedoms recognised by the Charter must respect the essence of those rights and freedoms”.

The court went on to say that CJEU case law demonstrated that a measure that results in serious infringement of one of the Charter rights is to be regarded as not respecting the requirement that such a fair balance be struck between the fundamental rights that must be reconciled. 

It is incumbent on the court to assess the various elements of the national legislation at issue in the main proceedings in the light of that requirement of a fair balance.

Eject

Given that the relevant domestic law in Germany guaranteed an “almost absolute protection for the family members of the owner of the internet connection through which copyright infringements were committed by file-sharing”, the CJEU considered that that law could not be considered to be “sufficiently effective and capable of leading to effective and dissuasive sanctions against the perpetrators of the infringement”, as required by article 8(1) of the Information Society Directive.

Moreover, the CJEU was of the view that the procedure initiated in respect of the remedy at issue in the main proceedings was not capable of ensuring the enforcement of IPRs required by article 3 (1) of the Enforcement Directive.

In conclusion, and considering the domestic German law in the light of the relevant provisions of the directives, the CJEU’s view was that the domestic German law should be deemed invalid.

The language of the judgment is a bit ambiguous, but the CJEU, referring to the relevant provisions of the directives, stated that they “must be interpreted as precluding national legislation such as that in the main proceedings”.

Record

The Bastei Lübbe ruling is the most recent addition to a series of CJEU judgments that address the balancing of fundamental rights in the context of the enforcement of IPRs. This series of rulings also includes cases C-275/06 Promusicae (2008), C-70/10 Scarlet Extended (2011), C-314/12 UPC Telekabel (2014), C-580/13 Coty Germany (2015), and C-484/14 McFadden (2016).

Bastei Lübbe is authority for the proposition that there are limitations to the rights contained in the Charter.

For example, an owner of an internet connection used for copyright infringements cannot invoke his fundamental right to private life so as to block or impede evidence-gathering in a case of alleged copyright infringement involving file-sharing.

In the clash between the protection of IP (article 17(2) of the Charter) and the right to a private life (article 7 of the Charter), the court in Bastei Lübbe comes down in favour of the former.