By: Natalia Vera Matiz
A new judgment of the Court of Justice of European Union Aim to provide some equilibrium between the intellectual property Rights, and other fundamental Rights
A new case of struggle between intellectual property rights and other fundamental rights was studied by the European Court of Justice; this case, constitutes a new advance in the search of an equilibrium between the mentioned rights, because the Court, in its analysis, had set the base for national judges look for that balance, balance that not always had been reached.
In this article, we are going to talk about the advantage of this judgment in order to demonstrate that although intellectual property must be protected, and the holders of copyright have to count with several means in order to protect it, there have to be a fair balance with other rights at stake.
In an era of expansion of the rights of intellectual property and its enforcement, we are before an important legal criterion, because, besides the established exceptions in the continental law (that are there to make a balance within Intellectual property and other fundamental rights, like for example freedom of expression, life privacy, or data protection) there are few cases where, the courts or the judges talk about the balance that should be between the copyright and other rights; And in this case, the Court of justice of the European Union not only treat the theme, but deepen in this, saying and establishing not only in a theoretical way but in a practical one, that there should be an appropriate balance.
Precisely part of the problem when the judges and the writers experts in the subject speaks about the need of an equilibrium among the Intellectual Property rights, and other fundamental rights, is that expose the issue just in theory, but almost never says, an alternative solution, an alternative way to achieve this balance is this or that, so we are before a real jewel inside the European jurisprudence, that not always expose the problem, but, expose the alternative ways to give it a solution, and in that order, gives new tools to the national authorities, for they structure their normative, in a way to make the balance that we have mentioned, and to advance at their time in this sense, in a manner that reflects in the evolution of the Intellectual Property law, which in turn can have an influence at an international level, since it is well known that the European jurisprudence has an impact on the countries of continental law.
In this article, first we are going to talk about the case, in this point we are going to make a brief of it, in second place, we are going to look at the consequence of it, in this dot we are going to compare the judgment with other, and last, we are going to make a conclusion of it.
The case turned around the following facts:
Bastei Lübbe is a german producer of phonograms in the version of audio books, which discovered that mister Strotzer that is an owner of an Internet connection downloaded a file that contained one of the audio books, in order to share it with an unlimited number of persons. When Bastei Lübbe required mister Strotzer to stop this, he didn’t do it, so Bastei Lübbe sued him before the regional judge. Nevertheless, when the case arrived to the judge, Mister Strotzer argued that he lived with his parents, and them could downloaded the file as well (although he said that he believed they did not do it) so, the judge of first instant dismissed the action, because there were other people that could do the download, and the interpretation law, in order to comply with the constitutional right of privacy life family, establishes that a person is not liability for damages, if he can name a family member that could do the infringement, and that he not has to provide any detail or evidence.
In the appellation instance, the supreme tribunal of criminal and civil law, despite consider that Mr. Strotzer was responsible for the infringement, due to his explanations about the facts were not enough to think a third person committed the mentioned infringement, suspended the procedure and asked the Court of Justice of the European Union, if the interpretation of the German law through jurisprudence, that provides that a person cannot be liability if there are other persons of his family that have access to the Internet, and not has the obligation to give more details, or evidence, in order to not infringe the right of protection of the privacy of the family that is enshrined in the UE Charter, is in compliance of the 2001/29 directive in its article eight that proscribe that there has to be effective sanctions for the infringement of the copyright related with the right of communication to the public, and with the directive 2004/48 that says that there has to be effective remedies to guarantee the respect to the rights of intellectual property.
It should be pointed, that according to the facts of the judgment (nine to ten), the German jurisprudence, presumed that the owner of an Internet connection is the author of an infringement always that no one else could have access to this connection at the moment when the injury was executed. For the other side, the jurisprudence impose to the owner of the connection a burden of proof, but the owner can be liberate of this burden, if he says that other person could have access to the connection and identifies him, and specifies that had an autonomous access to the connection, and for that reason his not responsible. Although, if a member of the family had access to the connection, the owner has not the obligation to provide any details about the moment or nature of the use, because the protection of the family that is guarantee by the Charter of the European Union.
When the Court analyzed the case, it concludes that there was not any equilibrium in a jurisprudential interpretation of the law, that allows a person exonerate of any liability, when says that another person of its family could commit the infringement to copyright, without give more details or evidence because the right holder does not has the way to claim to the judges a mean that give them the possibility to obtain the evidence related to the family members, in order to identified them, and establishes the circumstances of mode time and place in which they used the connection to Internet, so is impossible to demonstrate who made the infraction to copyright. Said in the final part, that in consequence the national normative is not in accordance with the article eight of the Directive 2001/29, and the article three of the Directive 2004/48 of the European Parliament.
It would be different, if the law or the jurisprudential interpretation of it, in order to avoid the intrusion in the family life, establishes that the person that is the owner of the Internet connection is responsible for any infringement. So the national law in this case, does not complain with the directive of the European Union.
The Consequence of the judgment
Although the European Court of Justice, had talk about the balance between intellectual property and other fundamental rights, specifically the data protection in three significant judgments, (Promusicae. V Telefonica C 275/06, Scarlet Extended v Sabam C 70/10 and Sabam v Netlog C360/10) where says that to adopt a filter systems that were asked by right holders, to be used by Internet services providers goes against the data protection, the freedom of receive and impart information, and the freedom of manage the own business, established that the national authorities should look for an equilibrium among the mentioned rights, the rule that we are studying, represents and advance, because in the cases that we are talking about the court does not rules about how can be this balance achieved; Nevertheless, in Bastei Lübbe v. Strotzer, the high tribunal draw a direction that can be used as a guide in the path to reach the balance, because in one hand, when talk about the german law that proscribes that a subject is not responsible for any damages when name another person of the family that could made the infringement, establishes that it would be different if there was another remedy that could compel the judges to obtain the information, or a version of the law that enshrine that the owner is liable for any infringement use, independently of if a member of his family did it, and in the other hand, makes clear that any right can be put over another, it means that no right is absolute, and, no one can abuse of this rights, to the point that annulled the enforcement of other right.
So, as we can see, the court goes deep down in this case, and show how, as we said before, how the balance can be achieved. This is going to have a repercussion in the jurisprudence, legislation doctrine of the national authorities, because, they are going to count with an instrument that explain them how to equilibrate the intellectual property with other rights, without give an absolute protection for any of it. It means that they are going to count not with just theory but with a practical case.
Besides, this case provide for other instruments of balance between IP and other rights, beyond the exceptions that are included in the IP law. This cause an impact, because traditionally, where there is a collision between IP rights and other rights, the solution is looked inside the IP law, there is almost always an internal solution, and if there are not any response in internal IP law, the decision is inclined to over protect the IP rights. But with this rule, is demonstrate that the conflict within IP and other rights, must be externalized, it means, hast to be accept, that we are before two law regimens the IP law, and the regimen of fundamental rights, and although the IP is consider also a fundamental right, the solution to the conflict can be found outside the IP regime, then, we cannot ignore the external conflict.
As we have seen, the conclusion is that the rule of the Justice Court of European Union constitutes and advances in an era where, as we said in the introduction, the states and the privates are looking for a maximum enforcement of the IP rights. This was tangible in the cases cited, where right holders of IP looked for the ISPs used a filter system in Internet in order to obtain the personal data of the infringement users of the network. So, we are before a time where the right holders are struggling to enforce their rights, even against rights like privacy, freedom of expression, etc.; even more in the field of Internet, that must be confront with jurisprudence and legislation where an equilibrium be put in front of this.
Although we can say this judgment rules in favor of the IP rights, draw a path that can be followed for the authorities in order to search, and apply in a practical mode, the balance among intellectual property and other fundamental rights, balance that is not always found inside the IP regime, but has to be externalized.
The judgment is a new form of rule for part of the Court, because beyond the theory, explains how to do the balance and more important, demonstrates that it could be reached.
We are sure, that the motivation of this case is going to have repercussion, given, that provides a deep analysis of the balance. As we said before, it could have impact, not only in Europe but around the world.
This judicial ruling in any case leaves the expectation of how the Court will continue to study and analyze the following cases where fundamental rights and intellectual property rights are at stake.
24 de marzo de 2020
13 de marzo de 2020
05 de marzo de 2020