Key facts of the case:
Reference for a preliminary ruling — Copyright and related rights — Internet video platform — Uploading of a film without the consent of the rightholder — Proceedings concerning an infringement of an intellectual property right — Directive 2004/48/EC — Article 8 — Applicant’s right of information — Article 8(2)(a) — Definition of ‘addresses’ — Email address, IP address and telephone number — Not included.
Outcome of the case:
66) In the light of the foregoing, I propose that the Court should answer the questions referred for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice, Germany) as follows:
Article 8(2)(a) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as meaning that the concept of ‘names and addresses’ set out in that provision does not cover, in respect of a user who has uploaded files which infringe intellectual property rights, the email address, the telephone number, the IP address used to upload those files or the IP address used when the user’s account was last accessed.
Accordingly, the Member States are not obliged, under that provision, to provide for the possibility, for the competent judicial authorities, to order that that information be provided in the context of proceedings concerning an infringement of an intellectual property right
5) Recitals 2, 10 and 32 of Directive 2004/48 are worded as follows:
‘(2) The protection of intellectual property should allow the inventor or creator to derive a legitimate profit from his/her invention or creation. It should also allow the widest possible dissemination of works, ideas and new know-how. At the same time, it should not hamper freedom of expression, the free movement of information, or the protection of personal data, including on the Internet.
(10) The objective of this Directive is to approximate legislative systems so as to ensure a high, equivalent and homogeneous level of protection in the internal market.
(32) This Directive respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. ( 3 ) In particular, this Directive seeks to ensure full respect for intellectual property, in accordance with Article 17(2) of th[e] Charter.’
49) Admittedly, it cannot be disputed that Directive 2004/48 seeks to ensure a high level of protection of intellectual property in the internal market, as stated in recitals 10 and 32 thereof and in accordance with Article 17(2) of the Charter.
51) However, it must be borne in mind that Directive 2004/48, like all legislation on intellectual property, ( 13 ) strikes a balance between, on the one hand, the interest of holders in protecting their intellectual property right, enshrined in Article 17(2) of the Charter and, on the other, the protection of the interests and fundamental rights of users of protected subject matter, and the public interest.
52) As the Court has held on numerous occasions, there is nothing whatsoever in the wording of Article 17(2) of the Charter or in the Court’s case-law to suggest that the right to intellectual property enshrined in that article is inviolable and must for that reason be absolutely protected. ( 14 )
53) Therefore, Article 17(2) of the Charter does not require that all available technical means be used to assist the holder in identifying possible infringers, without account being taken of the wording of the provisions of Directive 2004/48.
56) Although it is clear from recital 32 of Directive 2004/48 that that directive seeks to ensure full respect for intellectual property, in accordance with Article 17(2) of the Charter, at the same time it is clear from Article 2(3)(a) and recitals 2 and 15 of that directive that the protection of intellectual property is not to hamper, inter alia, the protection of personal data guaranteed in Article 8 of the Charter, so that that directive cannot, in particular, affect Directive 95/46. ( 19 )