The matter at hand

Bastei Lübbe, a German company, is the holder of the copyrights (and related rights) to an audio book. The audio book was shared on a peer-to-peer exchange program, for the purpose of enabling further downloads thereof, through an internet connection registered in name of Mr. Strotzer.

Strotzer denied that he had committed the copyright infringement himself and asserted that his parents, with whom he lived together, also had access to the same internet connection. Probably so as not to throw his parents under the bus completely, he however also stated that to his knowledge they did not have the audio book in question on their computer, were not aware of the existence thereof and did not use the peer-to-peer software. The Amtsgericht München (Local Court, Munich), where Bastei Lübbe initiated proceedings, subsequently dismissed the action for damages on the ground that Strotzer had identified family members who also had access to the internet connection and who could have committed the infringement instead.

Bastei Lübbe appealed to the Landgericht München I (Regional Court, Munich I, Germany). Although this court was inclined to hold Strotzer liable, the court considered that national law might preclude this. In this respect, the court referred to case law of the Bundesgerichtshof (Federal Court of Justice), according to which the owner of an internet connection is presumed to have committed the relevant copyright infringement, provided that no other person was able to use the internet connection at the time of infringement. If the owner of the internet connection explains that other persons, whose identity he discloses, also had access to the internet connection, he is therefore not presumed to have committed the infringement. Furthermore, if such persons are family members, the owner of the internet connection is not required to provide further details relating to the time and nature of the use of that connection, as this would conflict with the fundamental right to the protection of marriage and family guaranteed by Article 7 of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01] and the corresponding provisions in the German law.

In this context, the Regional Court referred the case for a preliminary ruling, asking, in essence, whether measures imposed under the Copyright DirectiveDirective 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 and the Enforcement DirectiveDirective 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights can be considered sufficiently ‘effective and dissuasive’, if the owner of an internet connection can escape liability by merely naming a family member with access to the same internet connection, without having to provide any further details as to when and how that family member used the internet connection.

The judgment of the ECJ

The ECJ recalls that the primary objective of the Copyright DirectiveDirective 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 is to establish a high level of protection of copyright and related rights and that the measures, procedures and remedies provided for by the Member States are to be effective, proportionate and dissuasive (paragraphs 30 and 34). Considering that “evidence is an element of paramount importance for establishing the infringement of intellectual property rights” the ECJ holds that it is appropriate in this respect to ensure that effective means of presenting, obtaining and preserving evidence are available (paragraph 40).

These requirements of the protection of the fundamental right to intellectual property as recognised under Article 17(2) of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01] must be reconciled with other fundamental rights, in this case the right to respect for private and family life guaranteed by Article 7 of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01]. This requires that a fair balance is struck between the fundamental rights which must be reconciled (paragraphs 44 - 46).

The ECJ holds that national laws which have the effect of creating an obstacle to a national court from being able to compel, on application of the claimant, the providing and obtaining of evidence relating to the opposing party’s family members, render it impossible to prove the alleged infringement and who was responsible for that infringement. By thus guaranteeing an almost absolute protection for the family members of the owner of an internet connection through which copyright infringements were committed, “the fundamental rights to an effective remedy and to intellectual property, enjoyed by the holder of the copyright, are seriously infringed, and thereby the requirement to ensure a fair balance between the various fundamental rights in question is not respected” (paragraph 51).

The ECJ holds that this would be different if, for the purposes of preventing what is regarded as an unacceptable interference with family life, “rightholders had at their disposal another effective remedy, allowing them, in particular, in such a situation, to have the owner of the internet connection in question held liable in tort”. In this regard, it is “for the referring court to determine whether, if applicable, there are, in the national law concerned, any other means, procedures or remedies which would allow the competent judicial authorities to order that information necessary for proving (…) an infringement of copyright and who infringed it be provided” (paragraphs 53 and 54).

On the basis of the forgoing, the ECJ concludes that the Copyright DirectiveDirective 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 and the Enforcement DirectiveDirective 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 precluding 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”.