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22 April 2020

Constantin Film v Youtube – What’s in a name (or address)?

On April 2nd 2020, the Court of Justice of the European Union (CJEU) published the opinion (the Opinion) of Attorney General Saugmandsgaard Øe (the AG) in the case of Constantin Film Verleih GmbH v Youtube LLC & Google Inc (C-246/19).

The Opinion discussed Youtube and Google’s refusal to provide the email addresses, telephone numbers and IP addresses of users who had infringed copyright by uploading several films online, as requested by Constantin under Art.8(2)(a) of Directive 2004/48/EC on the Enforcement of IP Rights (the Enforcement Directive). The Opinion, in which the AG largely agrees with the arguments put forward by Youtube and Google, provides important insight into the CJEU’s approach to balancing different fundamental rights provided under the EU’s Charter of Fundamental Rights, namely the protection of IP rights under Art.17(2), respect of private life under Art.7, and the protection of personal data under Art.8. The question of whether online platforms can be compelled to provide infringing users’ details is a complicated one, which has been responded to in conflicting ways in different jurisdictions.

Background

C-246/19 concerned the rights to Parker and Scary Movie 5, held by Constantin, which were infringed when uploaded several times onto Youtube, without Constantin’s consent. Constantin demanded that Youtube (and its parent company Google) hand over information about the users who had uploaded the infringing content, pursuant to Art.8(2)(a) of the Enforcement Directive, which they refused to do.

Art.8(2)(a) refers to the ‘names and addresses’ of certain categories of persons connected with the goods and services which infringe IP rights, which can be demanded by judicial authorities presiding over IP disputes.

Upon dismissal of Constantin’s action at first instance, and its partially successful appeal, the German Federal Court of Justice stayed the proceedings and referred to the CJEU the question of whether the information requested by Constantin falls under Art.8(2)(a).

Defining ‘names and addresses’

In reaching his conclusion, the AG considered that ‘names and addresses’ in Art.8(2)(a) are an autonomous concept within EU law, as they do not reference the laws of Member States, and therefore must be interpreted and applied uniformly within the EU. Furthermore, as ‘names and addresses’ are not defined in the Enforcement Directive, they must be given their everyday meaning, taking into account the Directive’s objective and the context within which the words appear. Accordingly, the AG concluded that addresses must be construed narrowly to only include postal addresses, not email or IP addresses, and that telephone numbers do not fall under either names or addresses.

In considering the breadth of ‘addresses,’ the AG noted that EU legislation meant to encompass email and IP addresses within their scope do so expressly, and that the Enforcement Directive does not. Therefore, according to the AG, ‘it follows from a literal interpretation of Art.8(2)(a) of Directive 2004/48 that the terms used by the EU legislature, namely the terms ‘names and addresses’ do not include any of the information set out in the questions referred for a preliminary ruling, as Youtube and Google and the Commission have submitted.’

The AG disagreed with Constantin’s argument that, as Art.8 of the Enforcement Directive aims to enable rightsholders to identify persons to whom that provision relates, it should be interpreted to encompass any information that enables the identification of those persons. In doing so, the AG rejected a dynamic interpretation of Art.8(2)(a), stating that the provision’s wording and context leaves no space for Constantin’s proposed interpretation, and that ‘a dynamic or teleological interpretation is only possible where the text of the provision itself [is] open to different interpretations, presenting some degree of ambiguity or vagueness.’ Importantly, this line of thinking runs contrary to an accruing body of European copyright case law, opined on by other Attorneys General, which has looked favourably upon a dynamic interpretation of legislation.

While the AG admits that the Enforcement Directive seeks to ensure a high degree of IP protection, he notes that it ‘strikes a balance between, on the one hand, the interests of rightsholders in protecting their IP rights, and on the other, the protection of the interests and fundamental rights of users of protected subject matter, and the public interest.’ However, in closing the AG notes that adopting a dynamic interpretation of the Enforcement Directive is not necessary in order to deal with online behaviour which amounts to copyright infringement, as ‘Member States have the power to adopt additional measures targeting that behaviour.’

Furthermore, he points out that Art.47 of TRIPS, which affords a mere ability to provide for a right of information,’ cannot be relied on in support of the interpretation’ put forward by Constantin.

In reaching his decision that ‘address’ is only a physical postal address, not an email or IP address, the AG cites the Dictionnaire de l’Académie française, which defines address as ‘the designation of the place where you can reach someone.’ However, this interpretation seems prima facie narrow, as other dictionaries provide for a more flexible everyday meaning of the term. For example, the Oxford English Dictionary provides the following definition of address, ‘a series of words or symbols that tells you where you can find something using a computer or phone, for example on the internet.’ As such, a simple and literal interpretation from a different dictionary of one’s choosing, as opposed to a dynamic one, would allow the CJEU  to hold that an ‘address’ is not limited to a physical postal address, but also an electronic one.

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