A wifi provider may be required to prevent third parties from making copyright-protected work available to the general public

15-09-2016 Print this page
IPPT20160915, CJEU, Mc Fadden v Sony

COPYRIGHT

 

Providing free access to a communication network is an ‘information society service’, if the activity is performed by the service provider in question for purposes of advertising.

 

"In the light of the foregoing, the answer to the first question referred is that Article 12(1) of Directive 2000/31, read in conjunction with Article 2(a) of that directive and with Article 1(2) of Directive 98/34, must be interpreted as meaning that a service such as that at issue in the main proceedings, provided by a communication network operator and consisting in making that network available to the general public free of charge constitutes an ‘information society service’ within the meaning of Article 12(1) of Directive 2000/31 where the activity is performed by the service provider in question for the purposes of advertising the goods sold or services supplied by that service provider."

 

Providing access to a communication network has been provided when that access does not go beyond the boundaries of a technical, automatic and passive process for the transmission of the required information, without further conditions to be satisfied.

 

" In the light of the foregoing, the answer to the second and third questions is that Article 12(1) of Directive 2000/31 must be interpreted as meaning that, in order for the service referred to in that article, consisting in providing access to a communication network, to be considered to have been provided, that access must not go beyond the boundaries of a technical, automatic and passive process for the transmission of the required information, there being no further conditions to be satisfied. "

 

Notice and take-down condition for hosting (Article 14 (1)(b) of Directive 2000/31) does not apply by analogy to providing access to communication network (Article 12 (1)).

 

"In the light of the foregoing, the answer to the sixth question is that Article 12(1) of Directive 2000/31 must be interpreted as meaning that the condition laid down in Article 14(1)(b) of that directive does not apply mutatis mutandis to Article 12(1)."

 

Provider of access to a communication network not liable for damages because access had been used to infringe rights. However, this does not preclude a claim against a provider of access to a communication network prohibiting the continuation of the infringement.

 

"In the light of the foregoing, the answer to the fourth question is that Article 12(1) of Directive 2000/31 must be interpreted as precluding a person harmed by the infringement of its rights over a work from claiming compensation from a provider of access to a communication network on the ground that such access was used by a third party to infringe its rights and the reimbursement of the costs of giving formal notice or court costs incurred in relation to its claim for compensation. However, that article must be interpreted as meaning that it does not preclude such a person from claiming injunctive relief against the continuation of that infringement and the payment of the costs of giving formal notice and court costs from a communication network access provider whose services were used in that infringement where such claims are made for the purposes of obtaining, or follow the grant of injunctive relief by a national authority or court to prevent that service provider from allowing the infringement to continue."

 

A member state may require that a provider of access to a communication network prevents that third parties make copyright-protected work available to the general public. The provider may choose which technical measures he uses to comply with this injunction, even if the measure takes away the anonymity among users.

 

"Consequently, the answer to the fifth, ninth and tenth questions referred is that, having regard to the requirements deriving from the protection of fundamental rights and to the rules laid down in Directives 2001/29 and 2004/48, Article 12(1) of Directive 2000/31, read in conjunction with Article 12(3) of that directive, must be interpreted as, in principle, not precluding the grant of an injunction such as that at issue in the main proceedings, which requires, on pain of payment of a fine, a communication network access provider to prevent third parties from making a particular copyright-protected work or parts thereof available to the general public from an online (peer-to-peer) exchange platform via the internet connection available in that network, where that provider may choose which technical measures to take in order to comply with the injunction even if such a choice is limited to a single measure consisting in password-protecting the internet connection, provided that those users are required to reveal their identity in order to obtain the required password and may not therefore act anonymously, a matter which it is for the referring court to ascertain." 

 

IPPT20160915, CJEU, Mc Fadden v Sony

 

C-484/14 - ECLI:EU:C:2016:689