Although EU Member States may exercise freedom in their implementation of the Copyright Directive (2001/29), Article 8 requires that all sanctions and remedies resulting from infringement be effective, proportionate and dissuasive. In the case of Bastei Lübbe the CJEU held that a provision in German law, intended to protect the right to family and private life, infringed this requirement.
Background to the case
The issue arose in the context of litigation between a German phonogram producer of an audiobook and Mr Strotzer, the owner of an internet connection through which an infringement was committed. Under German law, there was a presumption that the owner of an IP address is responsible unless others had access to the connection when the infringement was committed. However, if family members had access, the presumption could be rebutted merely by naming a family member who had access; no further details about when and how the internet was used by that family member needed to be provided. Consequently, the court could not obtain disclosure of enough facts to establish who had committed the infringement.
The importance of effective remedies
The Court of Justice (CJEU) ruled that the German legislation was inconsistent with the Copyright Directive because it meant that there was no effective remedy for the copyright owner in this situation. It made it clear, however, that if there had been other effective measures in German law enabling the copyright owner to obtain a remedy the legislation would be allowable. Copyright owners will welcome the outcome of this case, which reinforces the CJEU’s emphasis on the existence of effective remedies for copyright infringement in national law.
Case: Bastei Lübbe (C-149/17) 18 October 2018
Joanna Adcock