The Court of Justice of the European Union (CJEU) has concluded in a recent judgment, that the Directive on the enforcement of intellectual property rights (2004) does not oblige the courts of member States to disclose the IP address or telephone number of users that upload unauthorized content. However, the CJEU leaves sufficient margin for member States to decide on the level of information that their courts may require, respecting in all cases, the fundamental rights of users and the principle of proportionality. However, this margin for interpretation involves a risk of fragmentation in the internal market in respect of intellectual property since the rights of rightholders and the obligations of digital services providers can vary from on State to another.
In this case, the distributor Constantin Film had asked YouTube, and its parent company Google, to remove the films Parker y Scary Movie 5, uploaded to the platform by several users without its authorization. The distributor requested that content be blocked on several occasions, but they appeared again on the platform through other user accounts.
Constantin Films consequently sued YouTube and Google in order to obtain the personal details of the users that had uploaded the content in order to bring legal action against them. Specifically, Constantin Films requested:
- the email addresses
- telephone numbers
- IP addresses used by those users to upload the content, indicating the precise point in time at which such uploading took place the IP address last used by the users to access their YouTube account, and the precise point in time at which access was obtained
The Regional Court of Frankfurt dismissed the request. However, on appeal, the higher court ordered YouTube and Google to provide the email addresses of the users in question and dismissed the remaining requests. By its appeal on a point of law, Constantin Film insisted on the need to obtain all of the information requested, while in parallel, YouTube, requested the dismissal of the distributor’s claim in its entirety.
The German Supreme Court held that the resolution of the conflict depended on the interpretation of article 8 of the Directive on the enforcement of intellectual property rights and in particular on rightholders’ right to ask the competent judicial authorities to order that information on the origin and distribution networks of the goods or services which infringe an intellectual property right. This is a very valuable tool to identify infringers and not an easy task in view of the global nature of distribution networks and anonymity on the Internet.
From whom can this information be requested? According to article 8.1 of the Directive from the infringer himself and/or from anyone who has participated in the infringement on a commercial scale by possessing, using, manufacturing or distributing the infringing goods or services. The Directive does not exclude third parties acting in good faith or information society intermediaries who enjoy exclusion from liability under the Electronic Commerce Directive (2000).
But in this case, the relevant factor is what information can be requested from the courts: according to article 8.2 (a) of the Directive on the enforcement of intellectual property rights, “the names and addresses of the producers, manufacturers, distributors, suppliers and other previous holders of the goods or services, as well as the intended wholesalers and retailers”.
And it is at this point that the German Supreme Court requested help from the CJEU in order to determine the scope of the obligation to provide information regarding the infringers’ “address”. Specifically, the question referred for a preliminary ruling refers to whether the definition of “addresses” used by the Directive includes the email addresses of the purported infringers, their telephone numbers or the IP addresses used to publish the infringing contents, as well as the context in which it occurs (i.e. the precise point in time at which the uploading took place and at which the infringing account was accessed, etc.).
The answer is no. In the judgment handed down on July 9, 2020 in case C-264/19 (Constantin Film v YouTube) the CJEU followed YouTube and Google’s interpretation of the matter (also supported by the Advocate General in his Opinion and by the European Commission) and chose a restrictive interpretation of the concept “address” used by the Directive on enforcement of intellectual property rights. This concept should be understood to refer to the user’s postal address, that is, a given person’s permanent address or habitual residence. It was therefore ruled out that rightholders could require the courts, based on the Directive, to order third parties to provide the IP address, email address or telephone number of their users.
However, the CJEU leaves the member States margin to determine the scope of the information that they may require in relation to this data. In any event, the CJEU warned that this possibility must not breach users’ fundamental rights (e.g. the protection of their personal data) and should be subject to the principle of proportionality. The risk of fragmentation in the internal market with this judgment is obvious, since the rights of rightholders and the obligations of digital service providers can vary substantially from one State to another. This is the negative effect of the low level of harmonization that exists in intellectual property, a lack of agreement that has a negative impact both on innovation and also on the free circulation of content in the EU.