[Editor's note] Like most countries and regions in the world, The rulings of the Court of Justice of the European Union have important guiding significance and predictive value for understanding the legal norms of the European Union. Esabaril (ELZABURU) At the beginning of each year, typical cases of the Court of Justice of the European Union in the previous year are summarized and published, And a brief review of each case, In order to help customers and partners to understand the EU intellectual property norms. Given the importance of Chinese customers and partners, We try to publish the Chinese version of typical cases on a weekly basis, It is convenient for Chinese partners to learn the latest information in a timely manner.

　　 [background]

　　German publisher Bastei Lübbe I'm the copyright owner of an audiobook, discover Michael Strotzer Upload it to a shared folder via a peer-to-peer content delivery Internet platform, For open users to download. The publisher filed a lawsuit against the perpetrator at the Munich District Court, That is, when uploading dispute files IP Owner of address, Claim liability for the tort.

　　Michael Strotzer Arguing that the German company's copyright was not infringed, The reason is that his parents who live with him can use the same one IP address. but, Michael Strotzer Did not directly accuse his parents of committing the tort in question, And added that, Neither of his parents knew how to use computer file-sharing programs online, Don't know about the controversial audiobooks, Not to mention that it is stored on their computer.

　　The Munich District Court of first instance ruled against the plaintiff's claim for damages, The reason is that the defendant points out the possibility that his parents may also commit the tort in question, Therefore, it cannot be determined that the defendant actually committed the copyright infringement. The plaintiff appealed to the First District Court of Munich.

　　After the Court of Appeal, The defendant's argument was not accepted, That is to claim the third party use dispute IP Address infringement, Think that MichaelStrotzer There is a serious suspicion of committing the tort. but, The court of appeal held that, According to the German Federal Court "German copyright and related rights Law" alignment 97 An explanation of a paragraph, The defendant cannot be held liable for tort. As interpreted by a federal court, The applicant shall (plaintiff) Provide evidence of the existence of copyright infringement. In addition, The federal court held that, It can only be proved when the infringement has occurred, Exclude others from using the dispute IP The possibility of infringement by the address, In order to determine the IP The owner of the address has committed an infringement. contrary, if IP Address insecurity, Or knowing that others can also use the address to connect to the Internet, Can not be identified as IP The address owner has committed an infringement. In this case, Federal court precedents de facto recognize, IP The address owner has only a secondary burden of proof. IP The address owner provides other than himself the ability to use the address independently IP address, And thus the identity of the other person who is likely to commit the disputed tort, I've already met the secondary burden of proof that the law requires.

　　Due to "Charter of Fundamental Rights of the European Union" The first 7 article "Protect marriage and family" and "German Basic law" The provisions of the corresponding clause, although IP Family members of the address owner also use the address to connect to the Internet, But you can't mandate it IP Address owners provide details such as when and how their family members use the network.

　　Therefore, The court of appeal decided to stay the proceedings, To ask the European Court of Justice for a preliminary ruling on the understanding of the provisions of EU law relating to the protection of intellectual property rights.

　　 [conclusion]

　　On whether the above federal court precedents are consistent "Directive of the European Parliament and of the Council on the harmonization of partial provisions on copyright and related rights in the information society (The first 2001/29/EC No) " and "Directive of the European Parliament and the European Commission on enforcement of intellectual property rights (The first 2004/48/EC No) " Provisions requiring member States to adopt effective measures and methods to ensure effective enforcement of intellectual property rights, The European Court of Justice held that, Consideration should be given to conflicts and coordination between the different protections of fundamental rights, Seek a balance of power. On one hand, It is an effective remedy for intellectual property rights, On the other hand, Respect for the right to privacy and family life. but, If we only emphasize the infringement of intellectual property rights IP Address owner's family members are provided larger, Almost absolute protection, It would not be possible to achieve this balance. Therefore, European court of justice, German law fails to provide sufficient and effective measures to protect intellectual property rights from infringement.

　　Based on the above analysis, European court of justice ruling, If interpreted in accordance with the courts of that country, The law of a member state provides, Infringing on copyright by sharing files IP Address owner, Simply indicates that at least one family member can use the same IP Address connection network, Without providing detailed information about how and when the family member used the Internet, Can be exempted from liability for compensation; so, The member State does not comply with this provision "European Union regulation 2001/29/EC Number instruction" The first 8. 1 Bar sum 8. 2 Strip and "European Union regulation 2004/48/EC Number instruction" The first 3. 1 Bar sum 3. 2 Article requires member states must take effective measures to protect the implementation of intellectual property provisions.

　　 [comment]

　　What's interesting about this case is that, Intellectual property and other fundamental rights have become key factors in determining measures to protect intellectual property on the Internet. Although the European Court of Justice has made it clear that there should be a proper balance between intellectual property and other fundamental rights, But the ruling underscores the importance of cracking down on intellectual property violations on the Internet, Such as downloading or sharing a protected work without the owner's permission.

　　compile: Liu Dan, Esabarry Legal Counsel　　source: Esabaril (ELZABURU) Intellectual property rights