Wednesday 21 June 2017

Online Filesharing Platform Is Making Available To The Public

ECJ C-610/15

The European Court of Justice decided that the making available and the provision of an online file-sharing platform (here "The Pirate Bay") is effectively an act of "making available" of the works in accordance with the copyright directive 2001/29/EC.

The files uploaded by users of the platform for file-sharing reasons are predominantly copyright protected works, the sharing of which the rights holders did not permit the platform suppliers or the users of the platform.
Article 3 section 1 of the EC directive expressly includes in the right of the creator of a work to decide about the communication of his work to the public the right to decide about the making available of the work to the public. The Court found that even though the respective works were uploaded by the users of the online file-sharing platform, the supplier of the platform intentionally played a decisive role in the making available of the works. 

Monday 9 January 2017

ECJ Holds General Obligation For Telecoms To Retain Data Invalid.

ECJ C- 203 / 15

The European Court of Justice held that EU Member States may not impose a general obligation to retain data on telecommunications companies. According to the ECJ, EU law does not allow a general and indiscriminate retention of all traffic and location data. Member States may, however, adopt legislation providing for the targeted retention of such data as a preventative measure for the purpose of fighting serious crime, provided that such retention is limited to what is strictly necessary. 

This judgment follows the ECJ's judgment in 2014, invalidating the Data Retention Directive on the grounds that it seriously interferes with fundamental rights. Despite this ruling, several Member States believed that they were not prevented from keeping or enacting national data retention laws. This gave rise to two preliminary ruling procedures regarding the national data retention laws of Sweden and the United Kingdom (C-203/15 and C-698/15); both cases which were joined by the ECJ and resulted in the present judgment

Monday 24 October 2016

Dynamic IP Address Can Be Personal Data

ECJ C-582 / 14

The European Court of Justice had to look again at the legal question whether IP addresses are personal data under European data protection laws. This time it was not the internet service provider of a user holding its IP address but a social media provider which would allocate dynamic IP addresses to visitors of its website. The dynamic IP address alone would not enable the social media provider to determine the identity of the user. It would require in addition the personal data stored by the visitor's internet service provider. 

The Court found the fact that the online service provider itself did not hold all necessary information for the identification of the data subject not enough to negate the assumption of the dynamic IP address being personal data because the law would expressly include also the indirect determination of a data subject's identity. However, it found decisive whether the possibility to combine a dynamic IP address with the additional data held by the internet service provider constitutes a means likely reasonably to be used to identify the data subject. This would not be the case if for example the identification of the data subject was prohibited by law or practically impossible on account of the fact that it requires disproportional effort.

Monday 17 October 2016

Exhaustion Principle Only For Original Copy (CD)

EuGH C - 166 / 15

The first buyer of a copy of a software with the license to unrestricted use can resell the used copy (CD 1) and the license to a second buyer. If the original physical copy of software (CD 1) is damaged, destroyed or lost then the first buyer may resell his back up copy (CD 2) of the software to the second buyer only with the consent of the copyright holder. The principle of exhaustion only applies to the original copy (CD).

Monday 26 September 2016

Provider Of Free Public WiFi Not Liable for IP Infringements By Users

EuGH C-484 / 14

The European Court of Justice has found that the provider of a WiFi network, which he provides to the public without charge, cannot be held liable for IP infringements committed by users. He may be ordered though to protect the network by a password to prevent IP infringements. 

Hard - and Software Bundle Not Unfair Practice

EuGH C-310 / 15

The European Court of Justice decided that the sale of computer with pre-installed software is not an unfair business practice. The promotion of computer and software bundles meets the expectation of a considerable part of consumers and is therefore not a professional negligence. In such cases consumer also do not expect a separate display of prices which is why the lack of separate display of prices can not be deemed misleading consumers.

Linking Can Be Illegal Display of Protected Work

EuGH C-160 / 15

The European Court of Justice decided that creating a link to works displayed on another website is in itself illegal public display of the works, if the link creator knew that the display on the other website violated IP rights but he still created the link to generate profit.