AG weighs in on erotic films copyright dispute

An advocate general (AG) of the Court of Justice of the European Union (CJEU) yesterday  opined in a copyright dispute involving erotic films being shared via peer-to-peer file sharing software BitTorrent.

Cypriot company Mircom International Content Management & Consulting has licence agreements with several erotic film producers based in North America. Under these agreements, Mircom can share their erotic films on peer-to-peer networks and file-sharing sites.

Mircom is contractually required to investigate any infringement of the producers’ IP rights committed on those networks and to take legal action to obtain compensation, half of which must be passed to the producers. In 2019, Mircom brought proceedings against Belgium-based internet service providers (ISP)  Telenet,  Proximus, and  Scarlet in Belgium.

Mircom claimed that the ISPs should produce the identification data for customers whose internet connections had been used to share erotic films from the Mircom catalogue through BitTorrent.

In response, the ISPs claimed that releasing the information of the internet users who have shared those films would, on account of the explicit titles of those films, constitute the processing of data concerning a person’s sex life or sexual orientation, which is prohibited under EU law.

The Ondernemingsrechtbank Antwerpen (Companies Court, Belgium) was unsure whether users of peer-to-peer networks can be deemed to be communicating the works to the public just by sharing them.

The Belgian court was further unclear as to whether Mircom could benefit from the protection of EU law in this area, since Mircom is seeking to enforce the copyright rights of the third party producers. Finally, the court queried whether it was lawful to collect the IP addresses of users who have allegedly shared protected works on peer-to-peer networks.

The Belgian court opted to stay the proceedings pending a referral to the CJEU. As explained yesterday by AG Maciej Szpunar, BitTorrent enables people to share files through its software. The files are not uploaded in their entirety, but are broken down into smaller pieces which are re-assembled upon download, thereby re-creating the original work.

Szpunar said that file-sharing on a peer-to-peer network involves communicating with an indeterminate number of potential recipients. As such, offering internet users the opportunity to download pieces of files which contain copyright-protected works constitutes making those works available to the public, the AG opined. When this is carried out without the right owner’s permission, it is an infringement.

Next, Szpunar noted that although Mircom does not own the copyright of the works in question, it is a licensee with the right to communicate those works to the public through peer-to-peer networks.

However, if Mircom is not actually exploiting its rights in the licensed works and is instead trying to misuse its licensee status to claim damages, then this is an abuse of rights which is not acceptable, Szpunar said. Szpunar also rejected the ISPs’ argument regarding the sharing of data concerning a person’s sex life, as exceptions to this can be made under EU law where the data is processed in a secure manner.

The AG advised that the Belgian court consider whether Mircom’s request for the user information is just and proportionate, in the context of Mircom’s rights and its exploitation of those rights. If it is not, then the request for information may be refused by the court.