7 June 2018Copyright

Right to private life may not deprive copyright enforcement, says AG

An advocate general (AG) has said that the right to respect for private and family life under article 7 of the EU Charter of Fundamental Rights may not necessarily prevent copyright owners from protecting their IP.

AG Maciej Szpunar issued his opinion ( here, in German) to the Court of Justice of the European Union (CJEU) yesterday, June 6, in a case referred from the District Court Munich I.

While the opinion is not in English yet, it is available in several languages, including Italian, and has been covered by the IPKat blog where contributor Eleonora Rosati outlined the key elements.

Rosati said Szpunar advised the CJEU to find that EU law does not require national states to provide a presumption that a copyright owner is liable where their internet connection has been used for infringement.

However, he added that if national law envisages such a presumption to ensure the protection of copyright, this should be applied to guarantee effective copyright protection, Rosati noted.

“In this sense, the right to family and private life under article 7 of the EU Charter of Fundamental Rights may not be interpreted in such as way as to deprive copyright owners of any possibility of effective protection of their own intellectual property, the protection of which is mandated by article 17(2) of the EU Charter,” she added.

The case is between German publisher Bastei Lübbe and an individual called Michael Strotzer, whose internet connection was used for copyright infringement in 2010. He has argued that neither he nor his family, who also had access to the connection, committed the infringement.

Bastei Lübbe’s case was dismissed at first instance because it could not be found that Strotzer had committed the infringement. After the case reached the District Court Munich I, the court referred it to the CJEU.

As reported by Rosati, the AG said that in a case such as this—where fundamental rights are in conflict with each other—national courts should provide an appropriate balance.

Bastei Lübbe publishes books (including audio and electronic versions), games and other material, according to its website. The company’s core markets are Germany, Austria and Switzerland, providing titles in German and English.

Joseph Fesenmair, partner at Bird & Bird in Munich, said the AG is correct to strengthen the rights of copyright owners and that his reasoning is “absolutely in line” with the case law of Germany’s Federal Supreme Court.

Marcus von Welser, a partner at Vossius & Partner in Munich, pointed towards a "landmark" decision by Germany's Federal Court of Justice on March 30, 2017, just two weeks after the Munich court submitted the current case to the CJEU. The case concerned copyright infringement via the internet connection owned by a child's parents.

"The court held in its decision that the onus of presentation on the part of the owner of the internet connection (the parents) includes naming their adult child. The parents had already indicated to the court that their son (whom they did not name at that stage) had admitted to them to have committed the copyright infringement in question," von Welser said.

He added: "It makes sense for these issues to be handled on the European level in order to prevent the case law in EU member states from developing in diverging directions.

"However, in such case scenarios, both the fundamental right of ownership and the fundamental protection of the family, respectively, should have to be brought into an appropriate balance taking into account that an obligation to provide information about one’s children puts at risk family peace."

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