The matter at hand

Constantin Film Verleih has exclusive exploitation rights, inter alia, in respect of the cinematographic works ‘Parker’ and ‘Scary Movie 5’ in Germany. In 2013 and 2014, those works were uploaded onto the online platform YouTube. Constantin Film Verleih demands that YouTube and Google, the latter being the parent company of the former, provide it with a set of information relating to each of the users who have uploaded those work.

After the parties unanimously stated that the dispute at first instance concerning the names and postal addresses of the users in question had been formally settled, Constantin Film Verleih subsequently requested that YouTube and Google would be ordered to provide it with additional information. That additional information concerns the email addresses and telephone numbers as well as the IP addresses used by the users of YouTube in question and the IP address last used by those users to access their Google account in order to access YouTube. This together with the precise point in time at which such uploading took place or access was obtained, indicating the date and time, including minutes, seconds and time zones.  

The Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, Germany) dismissed Constantin Film Verleih’s request. On appeal, the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany) partially granted Constantin Film Verleih’s request and ordered YouTube and Google to provide it with the email addresses of the users in question but dismissed the appeal as to the remainder.

By its appeal on a point of law, Constatin Film Verleih maintains its claims seeking an order requiring YouTube and Google to provide it with the telephone numbers and IP addresses of the users in question. On the other hand, by their own appeal on a point of law, YouTube and Google claim that Constantin Film Verleih’s request should be dismissed in its entirety, including in relation to disclosure of the email addresses of the users in question. The Bundesgerichtshof (Federal Court of Justice, Germany) considers that the outcome of those two appeals on a point of law depends on the interpretation of Article 8(2)(a) of 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. Therefore, the Bundesgerichtshof decided to stay the proceedings and refer the question to the ECJ for a preliminary ruling, in essence asking if the information referred to in Article 8(2)(a) and Article 8(1) of 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, also includes the email addresses of service users, the telephone numbers of service users and/or the IP addresses used by service users to upload infringing files, together with the precise point in time at which such uploading took place?

The judgment of the ECJ

The ECJ recalls, as a preliminary point, that the term ‘addresses’, within the meaning of Article 8(2)(a) of 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, constitutes a concept of EU law, which must normally be given an independent and uniform interpretation throughout the European Union (paragraph 28). With reference to Spiegel Online (C-516/17) the ECJ holds that since 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 does not define that term, the meaning and scope of that term must be determined in accordance with its usual meaning in everyday language, while also taking into account the context in which it occurs and the purposes of the rules of which it is part and, where appropriate, its origins (paragraph 29).

In the first place, the ECJ noted that the usual meaning of the term ‘address’ in everyday language, covers only the postal address. It follows that the term, when used without any further clarification, as in Article 8(2)(a) of 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, does not refer to the email address, telephone number or IP address (paragraph 30).

Moreover, the ECJ stated that, that finding is in line with the travaux préparatoires that led to the adoption of 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, in particular the Proposal for a Directive of the European Parliament and of the Council on measures and procedures to ensure the enforcement of intellectual property rights of 30 January 2003 (COM(2003) 46 final), the Opinion of the European Economic and Social Committee of 29 October 2003 (OJ 2004 C 32, p. 15) and the Report of 5 December 2003 by the European Parliament (A5‑0468/2003).

Further, the ECJ highlights that the examination of other EU legal acts referring to email address or the IP address shows that none of these acts uses the term ‘address’ without further specification to designate the telephone number, the IP address, or the email address. 

In the view of the foregoing considerations, the ECJ stated ‘’that Article 8(2)(a) of Directive 2004/48 must be interpreted as meaning that the term ‘addresses’ contained in that provision does not cover, in respect of a user who has uploaded files which infringe an intellectual property right, his or her email address, telephone number and IP address used to upload those files or the IP address used when the user’s account was last accessed’’ (paragraph 40).