What will YouTube not tell you about an intellectual property infringer?
For years, film distributors have been fighting against illegal sharing of movies on the internet. The enforcement of rights before the courts is hampered in particular by the functioning of the platforms on which the films are posted, including the users’ relative anonymity. In a recent judgment, the Court of Justice of the European Union held that YouTube and Google are not obliged to turn over data to holders of IP rights allowing them to identify users who have infringed their rights. Which data? More below.
Constantin Film Verleih GmbH v YouTube LLC, C-264/19 (judgment of the Court of Justice of 9 July 2020)
Circumstances of the dispute
Constantin Film Verleih GmbH, a German film distributor, brought an action in Germany against YouTube LLC and its parent company Google Inc. seeking personally identifiable data of users who posted several videos on YouTube in breach of the claimant’s exclusive rights to the content. When it received information only about the users’ fictitious names, Constantin Film requested the email addresses, telephone numbers and IP addresses used by infringers so it could establish their identity.
Constantin Film based its claims on the provisions of German copyright law transposing the IP Enforcement Directive (2004/48/EC). Under Art. 8 of the directive, member states are required to ensure that, in the context of proceedings concerning infringement of intellectual property rights, for the competent judicial authorities may order the disclosure of certain information concerning the infringement of intellectual property rights, such as the infringers’ names and addresses (Art. 8(2)(a)).
Resolution of the dispute by the German court required an interpretation of this provision. The Court of Justice decided to consider the questions referred to it for a preliminary ruling together—essentially, whether the notion of “addresses” within the meaning of Art. 8(2)(a) of the directive includes the information requested by Constantin Film:
- Users’ email addresses
- Users’ telephone numbers
- IP addresses used to upload files infringing the claimant’s rights, and
- IP addresses of the last access to the users’ Google/YouTube account.
What are “addresses”?
The court first stated that the notion of “addresses” used in Directive 2004/48/EC is a concept of EU law, and its interpretation should be autonomous and uniform throughout the European Union. In this case, it was primarily a linguistic interpretation. The directive itself contains no definition of “address,” so the meaning of the term should be first determined on the basis of its usual meaning in everyday language. However, it is also necessary to take into account the context in which the word is used as well as the objectives of the legislative act of which the concept is part.
In its deliberations, the CJEU repeatedly referred to the opinion of the advocate general delivered in April 2020. Following his position, the court first noted that in everyday language, “address” means only postal address, i.e. the place of residence or stay of the individual.
Then it referred to the legislative history of the directive. According to the European Commission’s position at the time, the directive’s documentation does not contain any suggestion of a broader scope of the term “address,” e.g. that it should include the infringer’s email address, telephone number or IP address.
Thus a narrow interpretation is supported by the general context in which the term “address” was used. The court agreed with the advocate general that so far, in all cases where the EU legislature wanted to refer to an email address or IP address, it has done so explicitly. However, it never used the expression “names and addresses” in such a context. Therefore, there is no reason why Art. 8(2)(a) of Directive 2004/48/EC should be an exception.
Finally, this narrow interpretation of “address” is confirmed by the objective of the directive, which is to strike the right balance between, on one hand, the interest of right holders in protecting their intellectual property rights and, on the other hand, the protection of the interests and fundamental rights of users of the protected content and the public interest. Specifically, this means reconciling:
- The right to information which could identify the infringer and allow the holder to exercise the right to an effective remedy to protect its intellectual property rights, and
- The rights of users of internet platforms to protect their personal data.
Intellectual property law vs. personal data protection law
Although the right to information under Art. 8 of Directive 2004/48/EC is assumed to protect intellectual property rights, it cannot be interpreted broadly enough to cover access to any and all information allowing identification of persons infringing others’ rights. According to the advocate general, adopting such a “dynamic” or “teleological” interpretation would mean rewording the provision, which is not within the competence of the Court of Justice. Additionally, it would be contrary to the EU legislature’s assumption that in adopting Directive 2004/48/EC, it opted for minimum harmonisation in the protection of intellectual property rights.
As for the context of effective exercise of the right to property, including intellectual property rights (Art. 17(2) of the Charter of Fundamental Rights of the European Union), the court’s case law has already established the view that this right is not inviolable, and thus its protection is not ensured in an absolute manner (e.g. C-275/06, Promusicae, par. 62–70; C-360/10, SABAM, par. 41; C-461/10, Bonnier Audio, par. 56; C-201/13, Deckmyn, par. 26; C-469/17, Funke Medien NRW, par. 72). This is also confirmed in Art. 2(3)(a) of Directive 2004/48/EC and recitals 2 and 15, according to which the protection of intellectual property must not hamper the protection of personal data, and Directive 2004/48/EC shall not affect the Data Protection Directive (95/46/EC) (now replaced by the General Data Protection Regulation).
Consequently, the Court of Justice rejected the interpretation of the disputed Art. 8 of Directive 2004/48/EC suggested by Constantin Film and unequivocally held that the term “addresses” does not cover the email address, telephone number or IP address of YouTube users who uploaded files infringing an intellectual property right. Therefore, member states do not need to ensure that the competent judicial authorities may order the disclosure of such information in the context of proceedings concerning the infringement of intellectual property rights. This is an entitlement left to the member states under Art. 8(3)(a) of the directive. In their legislation implementing the directive, states may grant IP holders the right to receive more complete information, which would enable them to identify the infringers of their rights with more certainty. However, in such a case, a balance still needs to be struck with fundamental rights, while respecting general principles such as proportionality.
We discussed the Polish regulations in this area as part of the IP Courts series in an article on changes in information claims introduced from 1 July 2020. It is difficult to state unequivocally whether, if the above dispute had occurred in Poland, the relief sought by the claimant would have been granted. Pursuant to Art. 479115 of the Polish Civil Procedure Code, directly implementing Art. 8 of Directive 2004/48/EC, data which can be obtained to identify the infringer of intellectual property rights includes “information on the business name, place of residence or registered office and address.” These terms should be understood in accordance with the Polish Civil Code, specifically Art. 25, 41 and 432. These do not mention “address,” but it seems that the term “address,” used without further explanation, under Polish law would also not cover the email address, telephone number or IP address used to post such files or for last access to the user’s account. Nevertheless, only the practice of the courts will show whether when applying the above regulations, Polish courts will be strictly guided by the pro-EU canon of interpretation and consequently interpret the concept of address as presented in the Court of Justice judgment discussed above (which seems more likely), or will interpret it more liberally, facilitating right holders’ identification of persons infringing their intellectual property rights online.
Does the problem remain unresolved?
From the point of view of entities whose intellectual property rights are infringed, the CJEU judgment should be regarded as restrictive and in line with the current narrow interpretation of EU law. Therefore, it will still be difficult to locate infringers and seek damages from them.
Interestingly, the court did not refer in the case to the realistic technical possibilities of identifying users of YouTube/Google, which are, after all, vital. When registering, YouTube does not require users to provide their street address, but only a name, email address and date of birth. However, this information is not verified at any stage. Subsequently, the user must provide a phone number, to which an activation code is sent, only to enable uploading to the platform of videos lasting more than 15 minutes. It is no news that some users register with YouTube by providing false or incomplete data.
Using the traditional understanding of “address,” effective protection of intellectual property rights in similar situations cannot be ensured in practice. If, as the German court stated in its request for a preliminary ruling, YouTube does not collect more detailed data or verify the data it does collect, in principle, it is useless to pursue infringement proceedings when right holders can provide only a username or telephone number. Instead, access to the user’s IP address would give the greatest chance to identify the infringer. Of course, identification on this basis is also not certain, as the IP address is not assigned to a particular person but only allows determination of the device communicating with the internet, and in the case of a dynamic IP address that may not prove helpful either.
In light of this ruling, the possibility for holders of IP rights to obtain information allowing identification of the infringer and subsequently to pursue protection of their rights in court proceedings will depend entirely on the scope of information that must be provided under the law of each member state.
Katarzyna Sotyn, Intellectual Property practice, Wardyński & Partners