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CJEU to clarify scope of copyright infringement data requests

The EU's highest court has been asked to clarify what information copyright holders have a legal right to obtain from online platforms and intermediaries about internet users who are allegedly responsible for infringing their rights.25 Feb 2019

The German Federal Court of Justice said last Thursday that it would refer questions to the Court of Justice of the EU (CJEU) on the issue.

Under German copyright laws, rights holders are entitled to ask information society service providers, such as website operators and social media and content platforms, to disclose the "name and address" of users who they suspect have infringed their copyright so that they can pursue enforcement action against those individuals. Those laws, outlined in Section 101 of the German Copyright Act, implement EU laws on the enforcement of intellectual property rights.

A dispute arose before the German Federal Court of Justice, however, over the scope of the right to the alleged infringer's 'address' details. The case involves German film production and film distribution company Constantin Film and video content platform YouTube.

Frankfurt-based copyright law expert Nils Rauer of Pinsent Masons, the law firm behind Out-Law.com, said: "It has been generally accepted that the alleged infringer's postal address is covered by the term 'address' in the legislation, but there is a question over whether rights holders also have a legal right to the person's email address, phone number and their IP address. This question is of particular importance as the postal address might not be collected or retained by online intermediaries." 

The German court has asked the CJEU whether email addresses, phone numbers and IP addresses are covered by the right of information under Article 8(2)(a) of the EU's IP rights enforcement directive.

If IP addresses are covered, the German court has asked the CJEU to then clarify whether the right of information extends to the IP address which has been used by the user the last time they accessed the platform account, irrespective of whether the copyright infringement took place at that point in time.

While the German Federal Court of Justice has referred the questions to the CJEU for a definitive interpretation of EU law, it has also outlined its own preliminary view on the issue.

Rauer said that the German court is minded to rule that the alleged infringer's email addresses and phone numbers are subject to disclosure. However, it appears less convinced of rights holders' right to obtain the individual's IP address.

"What cannot be digested from the court's press release but what came through in yesterday's oral hearings when the judges explained why they turn to the CJEU is the fact that they deem IP addresses to be related to the device rather than the person uploading the content," Rauer said. "Therefore, an IP address might not be seen as a personal address of the user. It remains to be seen whether this is a consideration the CJEU might make its own."

A judgment from the CJEU is not anticipated for several months.