Intellectual Property Law

Can EU Internet Service Providers Provide Information Regarding Copyright Infringers?

By Martha L. Arias

Databases recovered value with the imposition of the Internet. Nowadays, companies significantly invest in collecting, protecting, maintaining, and securing their databases.  It is also clear that privacy laws in the United States (U.S.) and the European Union (EU) protect personal identifiable information found in databases, and that Internet Service Providers (ISP), specifically, can only reveal this information to public authorities conducting criminal investigations or for national security purposes. Indeed, the European Court of Justice (ECJ) decided an interesting case that posted the question of whether ISP could sell information to copyright groups regarding copyright infringers.     

In the Spanish case of Productores de Musica de Espana (Promusicae) v. Telefonica de Espana SAU, 2007 ECJ, the ECJ was to answer a preliminary ruling regarding the use of an ISP?s database by copyright associations that sought to indentify users who had infringed copyrights.  The facts of this case show that IPS in Spain were required to store certain data about individual users so this data could be used by criminal authorities or for public security and national defense. Productores de Musica de Espana (Spanish Music Producers), a copyright organization), sought to identify copyright infringers by using this law-mandated database.

The specific legal question was whether Community law allowed the communication of personal data collected on the use of the Internet to intellectual property holders. The copyright organization in this case claimed that several EU directives on intellectual property law gave them the right to use that data if it could help identify infringers of intellectual property rights.  The ECJ denied this assertion. It held that Community data protection laws applicable to IPS only allowed communication of personal traffic data to competent government authorities not including private copyright organizations that sought to file civil-law suits against copyright infringers.

Several directives were analyzed to reach this holding; Information Society:  (1) Directive 2000/31/EC of the European Parliament and of the Council of June 8, 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, article 1(5) that says that this directive does not cover information society services covered by Directives 95/46/EC and 97/66/EC; (2) article 15(2) of same directive that allows Member States to establish obligations for ISP to inform authorities of illegal activities; (3) article 18(1) that requires Member States to ensure court actions under national laws regarding information society services? activities.  As far as Community law on intellectual property, the ECJ reviewed the following laws: (1) Directive 2001/29/EC of the European Parliament and of the Council of May 22, 2001 on the harmonization of certain aspects of copyright and related rights in the information society, articles  8 and 6(2) that require Member States to provide sanctions and remedies for copyright infringements, and take measures to ensure that rightholders can bring an action for damages and injunction against copyright violators; (2) Article 8 of Directive 2004/48/EC of the European Parliament and of the Council of April 29, 2004 on the enforcement of intellectual property rights (5) provides for a special right of information for holders of intellectual property.  Regarding data protection, the ECJ reviewed the following laws: (1) Directive 2002/58/EC of the European Parliament and of the Council of July 12, 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector; (2) Article 2(b) of Directive 2002/58 on the definition of traffic data; (3) Article 1(2) of Directive 95/46/EC of the European Parliament and of the Council of October 24, 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

After an extensive analysis and interconnection of these directives, the ECJ rendered it decision and held that copyright organizations cannot use ISP?s databases to file civil-law suits against intellectual property infringers.

Full post as published by IBLS Internet Law Blog on July 29, 2009 (boomark / email).