Case Note: Right to private life revoked when it comes to digital copyright infringement

Bastei Lübbe GmbH & Co. KG v. Michael Strotzer (C-149/17)

The copyright and other rights of an audio version of a book are owned by a German publisher named Bastei Lübbe (BL). It is this right that caused an action to be filed against a Michael Strotzer (MS) after the book was shared over the internet using a connection owned by MS as well as the downloading using a special software.

The action was taken after the infringement was traced to MS’s IP address. MS denied the allegations completely and argued that he could not be held liable because there was no proof that it was him because someone else could have used his IP address. The issue was that by making this statement, MS was suggesting that it was someone else in the household of which his parents were the only other users of this connection. However, he claimed that they (1) did not own the audiobook in question (2) did not know it existed (3) did not use the online exchange software and (4) his own computer was switched off at the time of the infringement. The court which was in Munich sided with MS at the time by arguing that it was fair to say that there were other possible infringers.

BL appealed, primarily the Court considered that MS was seriously likely to have committed the copyright infringement. This was down to the facts of the case and how that on those facts, it seemed unlikely for a third party to have used his internet connection at the time of the infringement. Although, there was an exploration of the German Copyright Act because it was argued that there would need to be stringent evidence to suggest that MS, as the owner of the connection, did not have secure protection of the network. Also, it would support the infringer if it could be shown that he had left the network open for other specific people to use the network (meaning it may remove liability from the owner if the connection). The issue in the instant case is that MS had already provided detail that the only other people that had access to the network was his parents and family had protection by anonymity so MS was not obliged to give further details of them under German law.Â

Now comes the issues of conflict between national law and EU directives and fundamental rights. The Court applied the InfoSoc Directive and the Enforcement Directive provide that there is a requirement for member states to make sanctions and remedies available to rights holders. In the case of sanctions, they must meet the known “effective, proportionate and dissuasive” criteria (Article 3(2) Enforcement Directive). In regards to remedies, it is sufficient that they are provided in the law. Article 3(1) Enforcement Directive adds the “fair and equitable” criteria for “measures, procedures and remedies” against intellectual property infringement.

The InfoSoc Directive provides that copyright has a high level of protection which would not be possible if the member state has a law which provides such a protection for an owner like MS to not have to disclose his parent’s identity, meaning it is not possible to conclusively prosecute a particular individual. In turn, there needs to be a balance between fundamental rights to property (such as those who own copyright) and the right to a private life (those that may be accused of infringement) and this case note consider a balance to be the main change in law going forward.

The Court in the above matter considered that the balance requires the national laws to take into account the directive mentioned above and vice versa by the Charters ensuring any limitation on the exercise of the rights and freedoms recognised by the Charter must respect the essence of those rights and freedoms of individuals. The Court concluded that a measure is required which results in serious infringement of a right protected by the Charter not being susceptible of striking a fair balance between the fundamental rights which must be reconciled. Ultimately, those accused will not be able to rely on their fundamental rights, including the family members (Article 7 Charter includes family as those not granted protection) so would in time offer support to owners of digital copyright to prosecute.

Essentially, there must be a balance between national laws and Directives and the fundamental rights to a private life and right to property will be considered going forward with digital copyright infringement.

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