Last week the German Federal Court of Justice made a referral to the CJEU concerning the scope of information which platform operators will have to provide where a user commits an infringement in uploading copyright-protected works. Franz Gernhardt sets out the background to the case and provides comment.

Last week, the German Federal Court of Justice referred a case to the CJEU with respect to the scope of the liability of the online platform YouTube for copyright infringement (Federal Court of Justice, decision of February 21st 2019, Ref. Nr. I ZR 153/17). In particular at issue in the referral is whether a copyright holder has a right to receive information from YouTube on the e-mail addresses, phone numbers and IP addresses of uploaders who have committed copyright infringements under Article 8 of EC Directive 2004/48. The outcome of this referral will have major consequences regarding the scope of information which platform operators will have to provide where a user uploads copyright protected works on the video sharing platform.

Background of the case

The questions raised by the German Federal Court of Justice originate from proceedings in which the Claimant, a company active in the exploitation of movie rights, sued YouTube over the scope of information YouTube would be required to provide to the Claimant about a user who had uploaded two movies without the permission of the copyright holder. The user had, at the time of the registration, provided the platform with an e-mail address, as well as a telephone number. Along with these two pieces of information, the Claimant also asked YouTube about the IP addresses of those devices from which the movies had been uploaded, as well as the IP addresses which were used to access the YouTube account in the past.

The request of the Claimant is based on Art. 8 (2) lit. a) of EC Directive 2004/48. The provision in question states that Member States shall ensure that in proceedings concerning the infringement of an intellectual property right, the competent judicial authorities may order that information on the origin and distribution networks of the goods or services which infringe an intellectual property right be provided by the infringer and/or any other relevant person. The information shall, as appropriate, comprise of the names and addresses of the relevant producers, manufacturers, distributors, suppliers as well as the intended wholesalers and retailers.

While the Regional Court had previously dismissed the claim in full, the Court of Appeals has ruled that YouTube should be required to provide the Claimant with the e-mail address of the user who committed the copyright infringement in question, but deemed that the same did not apply to any need to release any telephone numbers or IP addresses. The Federal Court of Justice has now referred the case to the CJEU in order to the clarify the scope of this right of information (as codified in Article 8 of the EC Directive 2004/48).

Questions referred by the German Federal Court of Justice

The reasoning for the referral by the German Federal Court of Justice has not yet been published, with only the press release of the Court available. Therefore, it is currently very difficult to pick out the reasoning of the Court. It is, however, likely that the Court is, in particular, interested in the interpretation of the scope of “names and addresses” as mentioned in Article 8 of the EC Directive 2004/48.

The questions referred by the German Federal Court of Justice to the CJEU about the scope of Art. 8 (2) lit. a) EC Directive 2004/48 are as follows, (summarized here for the purposes of this article):

1. Does the Directive provision cover the e-mail addresses and telephone numbers of the relevant users as well as the IP addresses at the time the infringing material was uploaded?

2. If it is the case that the right to provide information would cover the IP addresses at the time the infringing material was uploaded, would the claim according to Art. 8 (2) lit. a) EC Directive 2004/48 also cover the IP addresses, which the user who has accessed the online platform has used in the past to use to access the account in question?

Comment

The referral of the German Federal Court of Justice is very much appreciated from both sides, copyright holders and platform operators alike. This is because the CJEU will now give its interpretation as to whether the e-mail address, the telephone numbers and the IP addresses of users are covered by the wording “names and addresses” as mentioned in the wording of Directive EC 2004/48. Such guidance by the CJEU will especially help platform operators and their internal operations to identify such information that has to be disclosed if requested. Furthermore, copyright holders will have certainty as to which information they will receive from platform operators and which information not.

MediaWrites will be following the referral to see which way the CJEU will rule.