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In the last few days, the Court of Justice of the European Union’s (“CJEU”) judgment in the Constantin Film Verleih GmbH v. YouTube LLC case came to light. Consistent with the conclusions of the Advocate General, which we reported in this blog, the CJEU states that the concept of “name and address” contained in article 8, section 2, letter a) of Directive 2004/48 on the enforcement of intellectual property rights (the “Directive”) does not include the email address, telephone number, IP address used to upload the files or the IP address last used to access the user account.
This issue arose in a dispute between YouTube and Constantin Film Verleih (“Constantin”) following YouTube’s refusal to provide the email addresses, telephone numbers, and IP addresses used by certain users who uploaded content on which Constantin held exclusive rights. In particular, the movies Parkery and Scary Movie 5 were uploaded to YouTube in full without Constantin’s authorization as holder of the rights on them, and before they were blocked, they had been accessed 45,000 and 10,700 times, respectively.
Germany’s Civil and Criminal Supreme Court asked whether the concept of “name and address” in the Directive actually included the data requested by Constantin in relation to a user who had uploaded files infringing an intellectual property right.
The CJEU started by reminding that, in the wording of section 1 of article 8 of the Directive, Member States are obliged to guarantee that, in the context of a dispute such as this, the competent courts can order data on the origin and distribution networks of the goods or services allegedly infringing an intellectual property right to be provided. In section two, it established that these data include the “names and addresses.”
With regard to interpreting the concept of “addresses” within the meaning of the Directive, and whether it also includes email addresses, telephone numbers and IP addresses, the CJEU states, as the Advocate General did in his conclusions, that it is an autonomous concept that must be subject to autonomous and uniform interpretation throughout the EU. Therefore, the standard of interpretation will be “its context, the objectives pursued by the rules of which it is part and, where appropriate, its origins.”
In line with the Advocate General, the CJEU rules out that the meaning given to the concept of “address” in current language includes the email address, telephone number or IP address. The CJEU does not see any intention by the lawmaker to include the data requested by Constantin in the concept of “address” in the preparatory work that led to approval of the Directive. Finally, the meaning given to the disputed concept in the context in which it is normally used does not endorse the inclusion of the data requested by Constantin either.
The CJEU concluded its analysis mentioning the necessary balance that must be guaranteed between the interest of the holders of an intellectual property right, on the one hand, and protecting the interests and fundamental rights of the users of protected subject matter, on the other, as well as the general interest.
Based on the analysis conducted, the CJEU concluded that the concept of “name and address” in the Directive does not include the data requested by Constantin, i.e. the email address, telephone number and IP address used by a user to upload protected content; therefore, Member States are not required to envisage the possibility of competent courts ordering these data to be provided in intellectual property right infringement proceedings.
However, the CJEU clarifies that the Directive only requiring that information is one thing, and Member States granting intellectual rights holders the right to receive broader information is another. It, therefore, leaves the door open to Member States using this power.
Marta Zaballos and Nora Oyarzabal
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