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YES, I AM INTERESTED NO, I AM NOT INTERESTED
Article 7 - Respect for private and family life
Article 8 - Protection of personal data
Article 17 - Right to property
Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Request for a preliminary ruling from the Ondernemingsrechtbank Antwerpen.
Reference for a preliminary ruling – Intellectual property – Copyright and related rights – Directive 2001/29/EC – Article 3(1) and (2) – Concept of ‘making available to the public’ – Downloading of a file containing a protected work via a peer-to-peer network and the simultaneous provision for uploading pieces of that file – Directive 2004/48/EC – Article 3(2) – Misuse of measures, procedures and remedies – Article 4 – Persons entitled to apply for the application of measures, procedures and remedies – Article 8 – Right of information – Article 13 – Concept of ‘prejudice’ – Regulation (EU) 2016/679 – Point (f) of the first subparagraph of Article 6(1) – Protection of natural persons with regard to the processing of personal data – Lawfulness of processing – Directive 2002/58/EC – Article 15(1) – Legislative measures to restrict the scope of the rights and obligations – Fundamental rights – Articles 7 and 8, Article 17(2) and the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union.
Outcome of the case:
On those grounds, the Court (Fifth Chamber) hereby rules:
It was in those circumstances that the Ondernemingsrechtbank Antwerpen (Companies Court, Antwerp) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) (a) Can the downloading of a file via a peer-to-peer network and the simultaneous provision for uploading of parts thereof … (which may be very fragmentary as compared to the whole) (‘seeding’) be regarded as a communication to the public within the meaning of Article 3(1) of Directive 2001/29, even if the individual pieces as such are unusable?
(b) is there a de minimis threshold above which the seeding of those pieces would constitute a communication to the public?
(c) is the fact that seeding can take place automatically (as a result of the BitTorrent client settings), and thus without the user’s knowledge, relevant?
(2)(a) Can a person who is the contractual holder of the copyright (or related rights), but does not himself exploit those rights and merely claims damages from alleged infringers – and whose economic business model thus depends on the existence of piracy, not on combating it – enjoy the same rights as those conferred by Chapter II of Directive 2004/48 on authors or licence holders who exploit copyright in the normal way?
(b) How can the licence holder in that case have suffered “prejudice” (within the meaning of Article 13 of Directive 2004/48) as a result of the infringement?
(3) Are the specific circumstances set out in Questions 1 and 2 relevant when assessing the correct balance to be struck between, on the one hand, the enforcement of intellectual property rights and, on the other, the rights and freedoms safeguarded by the [Charter of Fundamental Rights of the European Union], such as respect for private life and protection of personal data, in particular in the context of the assessment of proportionality?
(4) Is, in all those circumstances, the systematic registration and general further processing of the IP-addresses of a “swarm” of “seeders” (by the licence holder himself or herself, and by a third party on his or her behalf) legitimate under Regulation [2016/679], and specifically under Article 6(1) [first subparagraph] (f) thereof?’
58) If such making available, by uploading a work, without the rightholder of the copyright or related rights over it being able to rely on the rights laid down in Article 3(1) and (2) of Directive 2001/29, constitutes it being made available, the consequence would be that the need to safeguard a fair balance, referred to in recitals 3 and 31 of that directive, in the digital environment between, on one hand, the interest of the holders of copyright and related rights in the protection of their intellectual property, guaranteed in Article 17(2) of the Charter of Fundamental Rights (‘the Charter’) and, on the other hand, the protection of the interests and fundamental rights of users of protected subject matter, in particular their freedom of expression and information guaranteed in Article 11 of the Charter, as well as the public interest, would be disregarded (see, to that effect, judgment of 9 March 2021, VG Bild-Kunst, C‑392/19, EU:C:2021:181, paragraph 54 and the case-law cited). Disregard of that balance would, moreover, undermine the principal objective of Directive 2001/29, which, as is apparent from recitals 4, 9 and 10 thereof, is to establish a high level of protection for rightholders, enabling rightholders to obtain an appropriate reward for the use of their protected works or other subject matter, in particular when they are made available to the public.
83) The right to information, provided for in Article 8 of the Charter, seeks to apply and implement the fundamental right to an effective remedy guaranteed in Article 47 of the Charter, and thereby to ensure the effective exercise of the fundamental right to property, which includes the intellectual property right protected in Article 17(2) of the Charter by enabling the holder of an intellectual property right to identify the person who is infringing that right and take the necessary steps in order to protect it (judgment of 9 July 2020, Constantin Film Verleih, C‑264/19, EU:C:2020:542, paragraph 35).
123) Consequently, as is apparent from the case-law cited in paragraph 113 of the present judgment, such a request concerns the processing of traffic data. The right to protection of that data, which is enjoyed by the persons referred to in Article 8(1) of Directive 2004/48, forms part of the fundamental right of every person to have his or her personal data protected, as guaranteed by Article 8 of the Charter and Regulation 2016/679, as clarified and supplemented by Directive 2002/58 (see, to that effect, judgment of 16 July 2015, Coty Germany, C‑580/13, EU:C:2015:485, paragraph 30).