Large scale copyright infringement has been a significant problem for many in the creative industries.

Place your book, film or song online, and it is almost inevitable that it will be copied.

Peer to peer sharing networks have generated litigation around the world.

With wireless connections now commonplace (and often not secure), downloading illegal content over a wireless network registered to someone else was an easy way to avoid detection.

Copyright infringement

Which brings us to a dispute referred by the German courts to the Court of Justice of the European Union.

Bastei Lübbe is the holder of the copyright and related rights in the audio version of a book.

Mr Strotzer is the owner of an internet connection through which that audio book was shared, for the purpose of downloading, with an unlimited number of users of a peer-to-peer internet exchange.

An expert attributed the IP address in question to Mr Strotzer. Bastei Lübbe warned Mr Strotzer to cease and desist the infringement of copyright.

This had no effect and Bastei Lübbe brought an action before the Amtsgericht München (Local Court, Munich, Germany) against Mr Strotzer as the owner of the IP address in question, seeking damages.

Secure wifi

Mr Strotzer denied having himself infringed copyright and maintains that his connection was sufficiently secure.

In addition, he asserted that his parents, who live in the same household, also had access to that connection.

He said that to his knowledge they did not have the work in question on their computer, were not aware of the existence of the work and did not use the online exchange software.

In addition, Mr Strotzer’s computer was switched off at the time when the infringement in question was committed. Under German law the owner of an internet connection is presumed to have committed an infringement provided that no other person was able to use the internet connection at the time of the infringement.

However, if the internet connection was not sufficiently secure or was knowingly made available to other persons, then the owner of that connection is not presumed to have committed the infringement. In that case, German law places on the owner of the internet connection a secondary burden to present the facts.

The owner discharges that secondary burden to the required standard by explaining that other persons, whose identity he discloses, where appropriate, had independent access to his internet connection and are therefore capable of having committed the alleged infringement of copyright.

However where that other person is a family member, the owner of that connection is not required to provide further details relating to the time and the nature of the use of that connection, given the protection of marriage and family guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the corresponding provisions of German Law.

Enforcement measures

The problem is that Article 8 of the Copyright Directive (2001/29/EC) and Article 3 of the IP Enforcement Directive (2004/48/EC) require member states to provide 'effective' and 'dissuasive' measures, procedures and remedies for dealing with infringements.

How can the enforcement measures be effective if an infringer can escape liability by blaming a family member for the infringement?

The Court of Justice concluded that the existing German law was incompatible with the requirements of the European Directives.

It stated: 

" guaranteeing an almost absolute protection for the family members of the owner of an internet connection, through which copyright infringements were committed by means of file-sharing, the national legislation at issue in the main proceedings cannot, contrary to the requirements set by Article 8(1) of Directive 2001/29, be considered to be sufficiently effective and capable of ultimately leading to effective and dissuasive sanctions against the perpetrator of that infringement. Furthermore, the procedure initiated in respect of the remedy at issue in the main proceedings is not capable of ensuring the enforcement of intellectual property rights required by Article 3(1) of Directive 2004/48."

The court directed that the National Courts should ensure that rights holders had "at their disposal another effective remedy, allowing them, in particular, in such a situation, to have the owner of the internet connection in question held liable in tort."

The decision illustrates the balancing exercise that has to be carried out when facing the competing interests of intellectual property rights holders, and the fundamental freedoms set out in the Charter.

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