CJEU Case C-597/19 / Judgment
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:

Article 3(1) and (2) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the uploading, from the terminal equipment of a user of a peer-to-peer network to such equipment of other users of that network, of pieces, previously downloaded by that user, of a media file containing a protected work, even though those pieces are usable in themselves only as from a certain download rate, constitutes making available to the public within the meaning of that provision. It is irrelevant that, due to the configurations of the BitTorrent client sharing software, that uploading is automatically generated by it, when the user, from whose terminal equipment that uploading takes place, has subscribed to that software by giving his or her consent to its application after having been duly informed of its characteristics.

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 a person who is the contractual holder of certain intellectual property rights, who does not however use them himself or herself, but merely claims damages for alleged infringers, may benefit, in principle, from the measures, procedures and remedies provided for in Chapter II of that directive, unless it is established, in accordance with the general obligation laid down in Article 3(2) of that directive and on the basis of an overall and detailed assessment, that his or her request is abusive. In particular, as regards a request for information based on Article 8 of that directive, it must also be rejected if it is unjustified or disproportionate, which is for the referring court to determine.

Point (f) of subparagraph 1 of Article 6(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), read in conjunction with Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, must be interpreted as meaning that it precludes in principle, neither the systematic recording, by the holder of intellectual property rights as well as by a third party on his or her behalf, of IP addresses of users of peer-to-peer networks whose Internet connections have allegedly been used in infringing activities, nor the communication of the names and of the postal addresses of those users to that rightholder or to a third party in order to enable it to bring a claim for damages before a civil court for prejudice allegedly caused by those users, provided, however, that the initiatives and requests to that effect of that rightholder or of such a third party are justified, proportionate and not abusive and have their legal basis in a national legislative measure, within the meaning of Article 15(1) of Directive 2002/58, which limits the scope of the rules laid down in Articles 5 and 6 of that directive, as amended.
Paragraphs referring to EU Charter

37)

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?

If so,

(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?’

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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.

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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).

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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).