CJEU - C-597/19 - M.I.C.M.

CJEU - C-597/19 M.I.C.M.
Court:	CJEU
Jurisdiction:	European Union
Relevant Law:	Article 6(1)(f) GDPR
Decided:	17.06.2021
Parties:	Mircom International Content Management & Consulting (M.I.C.M.) Limited Proximus NV Telenet BVBA Scarlet Belgium NV
Case Number/Name:	C-597/19 M.I.C.M.
European Case Law Identifier:	ECLI:EU:C:2021:492
Reference from:	ORB Antwerpen (Belgium)
Language:	24 EU Languages
Original Source:	Judgement
Initial Contributor:	n/a

The CJEU held that EU law does not preclude the owners of intellectual property (IP) rights from systematically registering the IP addresses of users of peer-to-peer networks whose internet connections have been used to infringe their IP rights. EU law also does not preclude the communication of the names and postal addresses of such users to IP owners or to a third party for the purposes of initiating an action for damages. However, initiatives and requests in this regard must be justified, proportionate, not abusive and provided for by a national legislative measure which limits the scope of rights and obligations under EU law.

English Summary

Facts

A content management company (Mircom) submitted a request for information against Telenet, an internet service provider, to a Belgian Court. The request sought a decision requiring Telenet to produce the identification data of its customers on the basis of IP addresses collected, by a specialised company, on behalf of Mircom. The internet connections of Telenet’s customers had been used to share films in the Mircom catalogue, on a peer-to-peer network, using the BitTorrent protocol. Telenet challenged the request.

The Belgian court submitted a request for a preliminary ruling to the CJEU. Although most of the debate is centered around intellectual property law, data protection law is also involved.

First, it asked the Court whether the sharing of pieces of a media file containing a protected work on that network constitutes a communication to the public under EU law.

Secondly, it sought to ascertain whether the holder of intellectual property rights, such as Mircom, which did not use them, but claimed damages for alleged infringements, could benefit from the measures, procedures and remedies provided for by EU law in order to ensure that those rights are enforced, for example by requesting information.

Thirdly, the referring court asked the Court of Justice to clarify the question of the lawfulness, first, of the way in which the customers’ IP addresses have been collected by Mircom and, second, of the communication of the data requested by Mircom from Telenet.

Questions to the Court

(1) (a) Can the downloading of a file via a peer-to-peer network and the simultaneous provision for uploading of parts thereof … (which may be very fragmentary as compared to the whole) (‘seeding’) be regarded as a communication to the public within the meaning of Article 3(1) of Directive 2001/29, even if the individual pieces as such are unusable?

If so,

(b) is there a de minimis threshold above which the seeding of those pieces would constitute a communication to the public?

(c) is the fact that seeding can take place automatically (as a result of the BitTorrent client settings), and thus without the user’s knowledge, relevant?

(2) (a) Can a person who is the contractual holder of the copyright (or related rights), but does not himself exploit those rights and merely claims damages from alleged infringers – and whose economic business model thus depends on the existence of piracy, not on combating it – enjoy the same rights as those conferred by Chapter II of Directive 2004/48 on authors or licence holders who exploit copyright in the normal way?

(b) How can the licence holder in that case have suffered “prejudice” (within the meaning of Article 13 of Directive 2004/48) as a result of the infringement?

(3) Are the specific circumstances set out in Questions 1 and 2 relevant when assessing the correct balance to be struck between, on the one hand, the enforcement of intellectual property rights and, on the other, the rights and freedoms safeguarded by the [Charter of Fundamental Rights of the European Union], such as respect for private life and protection of personal data, in particular in the context of the assessment of proportionality?

(4) Is, in all those circumstances, the systematic registration and general further processing of the IP-addresses of a “swarm” of “seeders” (by the licence holder himself or herself, and by a third party on his or her behalf) legitimate under Regulation [2016/679], and specifically under Article 6(1) [first subparagraph] (f) thereof?

Holding

In the first place, the Court clarified that the uploading of pieces, previously downloaded, of a media file containing a protected work using a peer-to-peer network constitutes ‘making [a work] available to the public’, even though those pieces are unusable in themselves and the uploading is automatically generated when the user has subscribed to the BitTorrent client sharing software in giving his or her consent to its application after having duly been informed of its characteristics.

In the second place, the Court considered that Mircom, as holder of intellectual property rights on the discussed content, may benefit from the measures, procedures and remedies provided for by EU law for the exercise of those rights, unless that holder’s claim is abusive.

In the third place, the Court held that EU law does not preclude, in principle, the systematic registration, by the holder of intellectual property rights, of IP addresses of users of peer-to-peer networks whose internet connections have allegedly been used in infringing activities, or the communication of the names and of postal addresses of users to that holder or to a third party for the purposes of an action for damages.

However, initiatives and requests in that regard must be justified, proportionate, not abusive and provided for by a national legislative measure which limits the scope of rights and obligations under EU law.

The Court states that the latter does not impose an obligation on a company such as Telenet to communicate personal data to private individuals in order to be able to bring proceedings before the civil courts for copyright infringements. However, EU law allows Member States to impose such an obligation.

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