CJEU - Opinion of AG Saugmandsgaard Øe in C‑264/19 - Constantin Film Verleih GmbH v. YouTube LLC and Google Inc.
|CJEU - C‑264/19|
|Relevant Law:||Article 4(1) GDPR|
Article 2(a) Directive 95/46
Article 8(2)a Directive 2004/48
Article 8(1) Directive 2004/48
Article 8(3) Directive 2004/48
§ 101 German Law on Copyright (Urheberrechtsgesetz)
|Decided:||OPINION OF ADVOCATE GENERAL: 06.04.2020|
|Parties:||Constantin Film Verleih GmbH|
|European Case Law Identifier:||ECLI:EU:C:2020:261|
|Language:||24 EU Languages|
|Original Source:||AG Opinion|
Advocate-General Saugmandsgaard Øe advised his opinion on the Bundesgerichtshof’s (Federal Court of Justice, Germany) request for preliminary ruling in a case on intellectual property infringements and the obligation of YouTube and Google to disclose certain information of users who uploaded films illegally on YouTube to the holder of the infringed rights.
The underlying dispute concerns the refusal of YouTube LLC (“YouTube”) and its parent company Google Inc. (“Google”), both established in the United States, to provide certain information with regard to users who have placed several films online in breach of Constantin Film Verleih’s exclusive exploitation rights. Between the June 2013 and September 2014, works Parker and Scary Movie 5 were posted online on the YouTube platform without Constantin Film Verleih’s consent. Constantin Film Verleih demanded that YouTube and Google provide it with
- the user’s email address,
- the user’s telephone number,
- the IP address used by the user to upload the files at issue, together with the precise point in time at which such uploading took place, and
- the IP address last used by the user to access his or her Google/YouTube account, together with the precise point in time at which that access took place
under Article 8(2)(a) Directive 2004/48.
The Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, Germany) rejected Constantin Film Verleih’s request that such information be provided. On appeal, the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany) ordered YouTube and Google to provide the email addresses of the users concerned, rejecting Constantin Film Verleih’s request regarding the other information. After another appeal (on a point of law), the Bundesgerichtshof (Federal Court of Justice) referred the following questions to the Court for a preliminary ruling:
"(1) Do the addresses of the producers, manufacturers, distributors, suppliers and other previous holders of the goods or services, as well as the intended wholesalers and retailers, mentioned in Article 8(2)(a) of Directive [2004/48] and covered, as appropriate, by the information referred to in Article 8(1) of [that] directive, also include
(a) the email addresses of service users and/or
(b) the telephone numbers of service users and/or
(c) the IP addresses used by service users to upload infringing files, together with the precise point in time at which such uploading took place?
(2) If the answer to Question 1(c) is in the affirmative:
Does the information to be provided under Article 8(2)(a) of Directive [2004/48] also cover the IP address that a user, who has previously uploaded infringing files, last used to access his or her Google/YouTube user account, together with the precise point in time at which access took place, irrespective of whether any infringement [of intellectual property rights] was committed when that account was last accessed?"
The opinion of the Advocate General
The Advocate General assessed the concept of “names and addresses” in Article 8(2)(a) Directive 2004/48 which is not defined in that directive and has been implemented in the § 101(3)(1) of the German Law on Copyright (Urheberrechtsgesetz).
Initially, he stated the concept of “names and addresses” is a notion of EU law which must be given an autonomous and uniform interpretation. In his point of view, the usual meaning of a person’s “address” in everyday language covers only the postal address. That interpretation is confirmed by the definition of the French word “adresse” given in the Dictionnaire de l’Académie française, namely “la désignation du lieu (où l’on peut joindre quelqu’un” (the designation of the place where you can reach someone). Moreover, the Advocate General pointed out, that where the EU legislature has intended to refer to the email address or the IP address, it has done so expressly by supplementing the word “address”. Furthermore, that interpretation is confirmed by the historical interpretation: The travaux préparatoires, which led to the adoption of Directive 2004/48, contain nothing to suggest the term “address” should be understood as referring not only to the postal address, but also to the email address or the IP address of the persons concerned.
For this reasons, email addresses, IP addresses and telephone numbers do not fall under the concept of “names and addresses” under Article 8(2)(a) Directive 2004/48. According to the Advocate General, the terms used in that provision also do not offer sufficient room for interpretation to enable a dynamic or teleological interpretation with a view to including the information set out in the questions referred for a preliminary ruling.
Lastly, the Advocate General noted that data requested by Constantin Film Verleih are, by definition, personal data within the meaning of Article 2(a) Directive 95/46, now Article 4(1) GDPR since they must enable Constantin Film Verleih to identify the intellectual property infringers.
To adopt the interpretation suggested by Constantin Film Verleih would be tantamount to the CJEU rewriting Article 8(2) of Directive 2004/48. In addition, it would upset the balance between the user’s right to protection of personal data and the interests of holders of intellectual property rights in such a way as to favour the interests of holders of intellectual property rights.
In conclusion, the Advocate General proposed that the CJEU should answer the questions referred for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice, Germany) as follows:
“Article 8(2)(a) of Directive 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 meaning that the concept of ‘names and addresses’ set out in that provision does not cover, in respect of a user who has uploaded files which infringe intellectual property rights, the email address, the telephone number, the IP address used to upload those files or the IP address used when the user’s account was last accessed.”
Accordingly, the Member States are not obliged, under that provision, to provide for the possibility, for the competent judicial authorities, to order that that information be provided in the context of proceedings concerning an infringement of an intellectual property right.
The decision of the Court
To be completed once the CJEU has given its ruling.
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