EU Advocate General: Right to Private Life Shouldn’t Hinder Copyright Enforcement

In the EU, everyone has the right to respect for his or her private and family life. But should that right be used to prevent copyright holders from enforcing their rights when someone from a household shares copyrighted content without permission? A just-published opinion from EU Advocate General Szpunar says it should not.

On May 8, 2010, German citizen Michael Strotzer was the operator of an Internet connection from where an audiobook was made available on a peer-to-peer network.

Germany company Bastei Lübbe AG owned the copyrights to that content and had not given Strotzer permission to share it online. So, on October 28, 2010, Bastei Lübbe wrote to Strotzer with a demand for him to stop infringing their copyrights.

When the company’s letter failed to have the desired effect, Bastei Lübbe took Strotzer to court in Germany in an effort to obtain financial compensation for the alleged damages caused.

Strotzer denied that he had personally carried out the copyright infringement and said that his home network was secure. He also noted that his parents, who lived at the same address, had access to his network.

However, they did not have the audiobook on their computer and did not use file-sharing networks. In addition, he said that their computer had been turned off at the time when the audiobook was shared online.

The Court dismissed the action against Strotzer on the grounds that the copyright infringement could not be directly attributed to him since his parents could also have shared the audiobook. in response, Bastei Lübbe filed an appeal with the Regional Court of First Instance in Munich.

The Court said it was inclined to assume that Michael Strotzer was responsible for the infringement since it wasn’t clear from his statements that third parties had used his network and it was “highly likely” that the infringement was committed by him.

Case law, however, presented issues. The Federal Court previously ruled that it is for the copyright holder to prove the infringement. It also ruled that the Internet connection owner is likely to have committed the infringement if no-one else could have used his Internet connection at the time of the infringement.

That being said, if the internet connection was not sufficiently secure or was available to use by other people at the time of the infringement, the connection owner should disclose the identity of those people, effectively putting those people in the frame.

However, under Article 7 of the EU Charter of Fundamental Rights, which ensures the right to respect for a citizen’s private and family life, it was argued that the owner of the connection is not required to provide further information if a family member has had access to his network.

With this in mind, the Munich court referred the case to the Court of Justice of the European Union (CJEU) for guidance. Advocate General Szpunar published his opinion yesterday in 21 different languages (except English) but thanks to lawyer Eleonora Rosati, we have his findings in a nutshell.

“[Advocate General Szpunar] advised the CJEU to rule that EU law does not require to provide, at the national level, a presumption of liability of the owner of an internet connection for copyright infringements committed through such connection,” Rosati writes.

“However, if national law envisages such presumption to ensure the protection of copyright, this shall be applied coherently to guarantee effective copyright protection.

“In this sense, the right to family and private life under Article 7 of the EU Charter of Fundamental Rights may not be interpreted in such as way as to deprive copyright owners of any possibility of effective protection of their own intellectual property, the protection of which is mandated by Article 17(2) of the EU Charter,” Rosati adds.

In other words, if a country (in this case Germany) has national laws that reduce the burdens of proof in order to help protect copyright law (something which is not mandatory under EU law), it should not be the case that rightsholders are unable to enforce their rights due to an apparent conflict with the right to respect for private family life.

“If one was able to invoke Article 7 of the Charter to avoid having to disclose the names of those who might have used the connection, then the copyright owner would be deprived of his IP right,” Rosati explains.

“In any case, should a national court deem such intrusion into one’s own right to family life inadmissible, then the owner of the internet connection should be presumed liable for the relevant infringement, insofar as the copyright owner has no other means to identify the actual infringers.”

When cases are referred to the CJEU, the opinions and subsequent decisions of the Court often contain language which aims to balance what are often seen as conflicting rights. In this case, it’s suggested that the right to family life should not be (ab)used in order to avoid liability in a matter where the rights of another party have been infringed.

The opinion of the Advocate General is not binding but the CJEU generally follows such advice.