Insights | August 20, 2020

CJEU ruled on the extent of access to information in IPR cases

CJEU case C-264/19 clarifies Article 8 of Directive 2004/48/EC on the right to access information in cases of intellectual property infringements. The case affects directly the right to access information under Section 7a of the Finnish Act on preserving evidence.

The preliminary ruling in case C-264/19 of the Court of Justice of the European Union (CJEU) clarifies the extent of Article 8 of Directive 2004/48/EC on the enforcement of intellectual property rights (Enforcement Directive), which provides a claimant’s right to access information in proceedings concerning an infringement of an intellectual property right. In Finland, this preliminary ruling has an effect also on the applicant’s access to information in the context of an evidence seizure through the Finnish Supreme Court’s and the Market Court’s interpretation of the Finnish Act on Preserving Evidence in Industrial Property Rights and Copyright Matters (APE; in Finnish, Laki todistelun turvaamisesta teollis- ja tekijänoikeuksia koskevissa riita-asioissa).

Case summary

The case referred to the CJEU concerned a copyright infringement by uploading films onto a video platform, YouTube, without the consent of the copyright holder. As a consequence of the infringement, the films were viewed tens of thousands of times. The copyright holder then proceeded to demand YouTube and its parent company, Google, provide information on the users responsible for uploading the films, more specifically their email addresses and telephone numbers as well as the IP addresses used, both at the time of uploading the films and when they last accessed their Google/YouTube accounts. The companies refused to disclose the requested information, and the case boiled down to assessing whether national competent courts may order such disclosure to take place under Article 8 of the Enforcement Directive.

The wording of Article 8(2)(a) was under special scrutiny. It provides that judicial authorities may order disclosure of information on the origin and distribution networks of the goods or services which infringe an intellectual property right. Such disclosure entails, inter alia, “addresses” of persons who have infringed an intellectual property right. In its assessment, the CJEU referred to the usual meaning of the term “address” and pointed out that when used without further clarification, the term cannot be interpreted widely to cover information other than the postal address of a person, especially when balancing other rights such as the right to information and data protection. Thus, the CJEU arrived at the conclusion that the word address does not cover the email address, telephone number and IP address of the users. The CJEU, however, noted that the minimum harmonization in the Enforcement Directive allows member states to provide wider information rights to intellectual property right holders.

Conclusion and national implications

The meaning of the CJEU’s ruling is quite straightforward: Article 8 of the Enforcement Directive does not provide a right to obtain an email address, telephone number or IP address, but it may be possible to have such a right under national legislation that gives the intellectual property right holders better protection than that of the Enforcement Directive. In Finland, this interpretation seems to have a direct impact on the extent of an applicant’s right to access information in connection with an evidence seizure.

Article 8 of the Enforcement Directive has been implemented in Finland by adding Section 7a to the APE. The wording of that provision is quite similar to that of the Enforcement Directive, especially of the part the CJEU’s case hinged on.

In its decision KKO 2019:10 (in Finnish), the Supreme Court concluded that the applicant’s right to access information in the context of an evidence seizure is governed by Section 7a of the APE. (Criticism of this interpretation of the APE has been covered in an earlier Insights article, “Prerequisites for Measures for Preserving Evidence in IPR Cases Clarified“.) In the Supreme Court’s decision, this interpretation did not cause problems for the intellectual property rights holder because the case concerned only commercial information. However, in its subsequent decisions—MAO 59/20 (in Finnish) and MAO:512/19 (in Finnish)—the Market Court has interpreted the Supreme Court’s decision to mean that the applicant’s right to information in connection with an evidence seizure is limited to information listed in Section 7a of the APE and Article 8(2)(a) of the Enforcement Directive. According to the Market Court, the applicant does not have a right to access any other information, such as technical information necessary for establishing an infringement.

In light of the above case law and the CJEU’s ruling on the interpretation of Article 8(2)(a) of the Enforcement Directive, the applicant for an evidence seizure cannot have access to telephone numbers, IP addresses and email addresses in the context of proceedings concerning preservation of evidence.