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17 March 2016Copyright

Public Wi-Fi providers should be shielded from piracy claims, AG says

Shops, bars and restaurants that provide publicly available Wi-Fi should not be liable for copyright infringement if customers use their networks to access pirated material, a senior official at Europe’s highest court has said.

Advocate-General Maciej Szpunar issued his opinion on a dispute between shop owner Tobias McFadden and music publisher Sony yesterday, March 16.

The dispute arises from Germany, where Sony claimed McFadden is a liable for copyright infringement after a customer used his Wi-Fi network to illegally download a song. McFadden’s Wi-Fi is publicly available and does not require users to enter a password to access the network.

The Regional Court of Munich rejected McFadden’s claim for a declaration that he is not liable for infringement and granted Sony’s request for an injunction in 2014. The court referred the case to the Court of Justice of the European Union after expressing doubts that McFadden is directly liable for infringement, but believed he may have been indirectly liable.

Directive 2000/31/EC, governing e-commerce, exempts third-party services from copyright liability if they can demonstrate that they did not initiate the communication of the unauthorised material, select the recipient of the material and alter the information contained in the transmission.

Szpunar said that parties such as shops providing free Wi-Fi services fulfil these criteria. He said that the directive “precludes the making of an order against a provider of mere conduit service that entails a finding of civil liability”.

However, Szpunar noted that such parties can still be hit with injunction orders, but that injunctions must be proportionate, targeted at a specific infringement and uphold the balance between intellectual property rights and freedom of expression.

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