infractores

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If there is one defining characteristic of intellectual property, it is the balance that must be guaranteed between private and public interests or, in other words, between the right holders’ interest in protecting their intellectual property rights and protecting the interests and rights of users of protected rights and benefits.

The fast development of technology means lawmakers⁠—and more often courts⁠—face situations in which the limits between some interests and others are unclear. This is precisely the object of the dispute between YouTube and Constantin Film Verleih (“Constantin”) over YouTube’s refusal to provide the email addresses, telephone numbers and IP addresses used by some users who uploaded content on which Constantin held exclusive rights and resolved by the Advocate General (the “AG”) in his opinion of April 2, 2020.

The preliminary question raised by Germany’s Civil and Criminal Supreme Court (the “Supreme Court”) specifically related to interpreting the concept of “names and addresses” contained in article 8, section 2, letter a) of Directive 2004/48, on the enforcement of intellectual property rights (the “Directive”) and whether this included the data requested by Constantin.

The events leading to the preliminary question are as follows. Constantin is a movie distributor based in Germany that, as part of its regular activity, exclusively holds the intellectual property rights on several movies and, for the purposes of this case, on the movies “Parkery” and “Scary Movie 5.” Both movies were uploaded to YouTube in full, without Constantin’s authorization, by two users, and before they were blocked, they had been viewed 45,000 and 10,700 times, respectively.

Constantin requested that YouTube provide a series of data on each of the users—email address, telephone number, IP address used to upload the files and IP address last used to access their user account—which it refused to do. After the issue was escalated to the Supreme Court, it decided to suspend the proceedings and refer two preliminary questions on the concept of “names and addresses” in the Directive.

The AG begins by reminding that “names and addresses” in the Directive is an autonomous concept of the EU and, consequently, must be interpreted autonomously and uniformly by the CJEU. This being the case, and since these concepts are not defined   in EU law, the AG interprets them based on “their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part.”

The AG rules out any doubt regarding the meaning of the term “address” in common language, which solely refers to postal addresses, as the defendants claimed. He continues his analysis on telephone numbers, denying their inclusion in the concept of “name and address” in the Directive. In his opinion, email and IP addresses are the data whose interpretation generates or can generate most doubts. Based on the literal wording of the regulation, the AG understands that, if the lawmaker had meant to include email or IP address in the concept of “name and address,” it would have explicitly done so. Any historic interpretation of the lawmakers’ intention in adopting the disputed regulation does not mean they wanted to include email or IP addresses in the concept of “name and address” either.

The AG also understands Constantin’s argument that, if article 8 of the Directive seeks to allow intellectual property right holders to identify alleged infringers, in referring to “name and address”, article 2 must therefore include “any information that makes it possible to identify” these people, which could include their telephone number, email and IP address or even bank details. However, he denies that the Directive’s current wording may be interpreted this way, and that the CJEU is the appropriate forum to propose a new wording, which is the lawmaker’s responsibility, in any case. This “dynamic” or “teleological” interpretation would only be appropriate in case of “ambiguity” or “vagueness” in its wording, which, according to the AG, is not the case here.

In conclusion, the AG reminds of the balance, referred to above, that must be guaranteed between the interests of intellectual property right holders and the interests and fundamental rights of users and underscores the need to “reconcile respect for the different rights, in particular the holders’ right of information and the users’ right to protection of their personal data.”

As a logical result of the analysis conducted, the AG proposes to respond to the preliminary questions raised stating that the concept of “name and address” does not include email addresses, telephone numbers, the IP address used to upload the files or the IP address last used to access the user account. Consequently, Member States are not obliged to envisage the possibility of competent courts ordering these data to be provided in the framework of intellectual property infringement proceedings.

Authors: Marta Zaballos and Nora Oyarzabal

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marta.zaballos@cuatrecasas.com

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nora.oyarzabal@cuatrecasas.com