Case C-484/14 questions the liability of a “mere conduit”

03.12.2014
 
Four years ago, an illegal copy of a copyright protected piece of music was made available to an unlimited amount of internet users through a file sharing site, using a shop’s WLAN system which was freely accessible to anyone in the street where his shop is found.
 
This action made the CJEU doubt if the person, in this case, Mr. McFadden, that offers a non-password protected access to the Internet which an unknown user used to share a piece of copyright infringed music can be absolved of legal liability on the basis that he was a “mere conduit” (in accordance the EU Directive 2000/31/EC).  
 
Mr. McFadden defended his case through the European Union’s E-Commerce Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ [2000] L178/1), denying any liability for copyright infringement as an intermediary services provider (IPS). 
 
Article 12 of the Directive 2000/31/EC excludes ‘mere conduits’ from legal liability for IPS: “Mere conduit”:L
"1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:
 
(a) does not initiate the transmissios
 
(b) does not select the receiver of the transmission; and
 
(c) does not select or modify the information contained in the transmission.
 
2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.
 
3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement".
 
Faced with the difficulty of understanding the application of the article 12 ‘mere conduit’ stated in the E-Commerce Directive, the Landgericht München decided to ask 9 questions of the CJEU:
 
1. When read together with Article 2(a) of the E-Commerce Directive and Article 1(2) of Directive 98/34/EC as amended by Directive 98/48/EC, is the phrase ‘normally provided for remuneration’ in Article 12(1) of the E-Commerce Directive to be interpreted as meaning that the national court must determine whether the person who claims to be a service provider normally provides the service for remuneration; or does it mean that suppliers in the market normally provide this service or comparable ones for remuneration; or that the majority of this or comparable services are offered for a fee?
 
2. Is the phrase ‘the provision of access to a communication network’ in Article 12(1)(a) of the E-Commerce Directive to be interpreted as meaning that to conform with the Directive that it is significant that the connection is successful when access to a communications network (for example, the Internet) is provided?
 
3. When Article 2(b) of the E-Commerce Directive refers to ‘provider’, and is read together with Article 12(1)(a), then does the latter provision cover the situation where the information society service actually being provided is a publicly available WLAN, or is for example some other form of promotion or advertising also required?
 
4. When Article 12(1)(a) of the E-Commerce Directive states a ‘service provider is not liable for the information transmitted’, is this to be interpreted as excluding any claims for injunctive relief, damages, and the recovery of warning costs and court fees, incurred in relation to the copyright infringement concerned, against the access provider or in any event in respect of the initial copyright infringement?
 
5. Is Article 12(1)(a) of the E-Commerce Directive, when read together with Article 12(3) to be interpreted as meaning that Member States cannot allow a national court from issuing an injunction in proceedings brought against the access provider, whereby the access provider must desist from enabling third parties access via a specific Internet connection to a specific copyright-protected work made electronically available on demand on file-sharing sites?
 
6. Is Article 12(1)(a) of the E-Commerce Directive to be interpreted as meaning that in the circumstances of present case, Article 14(1)(b) applies mutatis mutandis to an injunction?
 
7. Is Article 12(1)(a) of the E-Commerce Directive when read together with Article 2(b) to be interpreted as meaning that the claims against a service provider are exhausted where a service provider is any natural or legal person who provides an information society service?
 
8. If the answer to Question 7 is in the negative, then which additional criteria can be required of a service provider when interpreting Article 2(b) of the E-Commerce Directive?
 
9(a). Taking into account the protection of fundamental legal right of intellectual property, which derives from the right to property (Art 17(2) EU Charter) and the provisions in Directives 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society […], and Directive 2004/48/EC on the enforcement of intellectual property rights […], and taking into account freedom of expression and the freedom to conduct a business in Article 16 of the EU Charter; is Article 12(1)(a) of the E-Commerce Directive to be interpreted as meaning that this does not preclude a decision by the national court in the main proceedings, if that decision makes the access provider liable for costs, and prohibits him from allowing third parties access via a specific internet connection to a specific copyright-protected work or parts thereof, via internet file-sharing sites made electronically available on demand, leaves the access provider free to adopt whichever technical measures in order to comply with this order?
 
9(b). Does this also apply when the access provider can only really comply with the injunction if he shuts down the internet connection or uses password protection or checks every ongoing communication to see whether that particular copyright-protected work is illicitly exchanged once again, and that this is clear from the start, and does not become apparent only for the first time in the context of enforcement proceedings or sentencing proceedings?
 
If the decision concludes that those who offer free access to their Internet may be liable for third party copyright infringements, this will probably lead to businesses denying password-free WiFi connection from now on.
 
We will have to wait and see what the CJUE finally decides.  
 
Written by. Athena Poysky and Antonio Torres
Source: http://ipkitten.blogspot.com.es/
Image : Wayda Dreamscape. Under creative commons license. (CC BY 2.0)


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