EU copyright protection held to override "family life" defence

The owner of an internet connection used for copyright infringements through file sharing cannot be exonerated from liability simply by naming a family member who might have had access to that connection, without providing further information.

In a ruling on a reference from the German courts, the EU Court of Justice has held that rightholders must have at their disposal an effective remedy or means of having disclosure ordered of necessary information.

Publisher Bastei Lübbe is seeking compensation from Michael Strotzer in the Regional Court in Munich on account of an audio book in which it holds the copyright and related rights, which was shared, for the purpose of downloading, with an unlimited number of users of a peer-to-peer internet exchange by means of an internet connection owned by Mr Strotzer.

The defendant denies having infringed copyright and maintains that his parents, who live in the same household, also had access to that connection. He provided no further details as to when and how the internet was used by his parents, but the German court took the view, based on case law that having regard to the fundamental right to protection of family life, such a defence was sufficient under German law to exclude the owner of the internet connection from liability.

In today’s judgment, the CJEU rules that EU law precludes national legislation under which the owner of an internet connection used for copyright infringements through file-sharing cannot be held liable to pay damages if he can name at least one family member who might have had access to that connection, without providing further details as to when and how the internet was used by that family member.

It considers that a fair balance must be struck between the various fundamental rights, namely the right to an effective remedy and the right to intellectual property, on the one hand, and the right to respect for private and family life, on the other. There is no such fair balance where almost absolute protection is guaranteed for the family members of the owner of an internet connection, through which copyright infringements were committed by means of file-sharing.

If further information regarding the other family members cannot be required, proving the alleged copyright infringement and who was responsible for it would be rendered impossible, which would seriously infringe the fundamental rights to an effective remedy and to intellectual property as enjoyed by the copyright holder.

The court observed that that would not be the case if, for the purposes of preventing what was regarded as an unacceptable interference with family life, rightholders had at their disposal another effective remedy, by which for example the owner of the internet connection could be held liable in tort. It was aldso for the national court to determine whether there were any other means, procedures or remedies which would allow for the necessary information to be provided.

Click here to access the judgment and related papers.