Intellectual Property Law

EU Protection of Copyrights and Service Providers' Obligation to Communicate Personal Data in Civil Proceedings

By Martha L. Arias

Interpretation of European Community laws and their adaptation by Member States is a complex task when several EU Directives are involved. In January 2008, the European Court of Justice decided a case that involved interpretation of several e-commerce, copyright directives, and some directives regarding the processing of personal data and the question of whether Internet service providers were to provide users' personal data within copyright proceedings. The facts and holding of the European Court of Justice (ECJ) in this particular case follows.

The facts of this case emerged when Telefonica de Espana SAU ("Telefonica'), refused to provide personal data relating the use of the Internet by Telefonica's users.  The personal data was requested by an organization of music producers holding intellectual property rights. This case involved the interpretation and harmonization of the Electronic Commerce Directive 2000/31/EC (regarding information society services); Directive 2001/29/EC regarding copyrights in the information society; Directive 2004/48/EC on the community enforcement of intellectual property rights; and Directive 2002/58/EC concerning protection of privacy and the processing of personal data in the electronic communication sector.            

The legal question submitted by Spain national courts to the European Court of Justice was whether Community law, particularly, Directives 2000/31, 2001/29, and 2004/48, interpreted in the light of Articles 17 and 47 of the Community Charter, require Member States to oblige service providers to communicate personal data in the context of civil proceedings and thus effectively protect copyrights. 

As specifically relevant to this case, article 15 of Directive 2000/31 prohibits Member States from imposing providers with a general obligation to monitor the information they transmit or store.  Member States, however, may impose on service providers the obligation of informing the competent government authorities of alleged illegal activities by their users, or the obligation of providing authorities, upon request, information enabling identification of their Internet users.   Likewise, article 18 allows Member States to take legal measures to ensure that domestic courts can terminate society services' infringement and violation of interests. 

Directive 2001/29 regulates and protects copyrights in the information society.  Article 8 states that Members States shall provide appropriate sanctions and remedies (effective, proportionate and dissuasive) for copyright infringements.  It also requires that Member States make available for copyright holders legal actions, remedies, injunctions, award of damages, and even seizure of infringing materials, to protect their rights.  The Directive expressly grants copyright holders the right to apply for an injunction against intermediaries whose services is used by third party infringers.  Article 9 states that this Directive is applicable to

  
Directive 2004/48 related to the community's measures, procedures, remedies, and enforcement of intellectual property rights; without impairment of Member States' substantive intellectual property (IP) law (article 2(3)). Member States, however, must adopt international obligations under the TRIPS agreement, including criminal procedures and penalties.  Article 3 requires that Member States establish fair, equitable, unnecessarily complicated or costly, or unwarranted delay procedures and remedies to ensure enforcement of intellectual property rights. This article concretely calls for effective, proportionate, dissuasive measures to protect IP rights, without creating trade barriers. Article 8 of this Directive is particularly relevant to this case.  It allows that Member States' competent judicial authorities order information on the origin and distribution of IP infringing material from their infringer, possessors, users, manufacturers, or providers.    This article further states that any of these persons should be afforded the right to refuse providing this information when it would force him/her to admit his/her own participation or that of his/her close relatives in an IP infringement case.    

Full post as published by IBLS Internet Law Blog on July 16, 2008 (boomark / email).