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Productores de Música de España (Promusicae)3
Telefónica de España SAU5
(Reference for a preliminary ruling from the Juzgado de lo Mercantil nº 5 de Madrid)6
(Information society – Obligations of providers of services – Retention and disclosure of certain traffic data – Obligation of disclosure – Limits – Protection of the confidentiality of electronic communications – Compatibility with the protection of copyright and related rights – Right to effective protection of intellectual property)7
Summary of the Judgment8
Approximation of laws – Harmonisation of certain aspects of copyright and related rights in the information society – Directive 2001/29 – Electronic commerce – Directive 2000/31 – Processing of personal data and the protection of privacy in the electronic communications sector – Directive 2002/58 – Enforcement of intellectual property rights – Directive 2004/48 – Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)9
(TRIPs Agreement, Arts 41, 42 and 47; European Parliament and Council Directives 2000/31, 2001/29, 2002/58 and 2004/48)10
Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (Directive on electronic commerce), Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, Directive 2004/48 on the enforcement of intellectual property rights, and Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) do not require the Member States to lay down an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings, in a situation in which a non-profit-making organisation of producers and publishers of musical and audiovisual recordings has brought proceedings seeking an order that a provider of internet access services disclose to the organisation the identities and physical addresses of certain subscribers, so as to enable civil proceedings to be brought for infringement of copyright.11
Similarly, as to Articles 41, 42 and 47 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement), in the light of which Community law must as far as possible be interpreted where it regulates a field to which that agreement applies, while they require the effective protection of intellectual property rights and the institution of judicial remedies for their enforcement, they do not contain provisions which require those directives to be interpreted as compelling the Member States to lay down an obligation to communicate personal data in the context of civil proceedings.12
However, Community law requires that, when transposing those directives, the Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.13
(see paras 60, 70, operative part)
November 27, 2017
Giancarlo Frosio, PhD
CEIPI, Université de Strasbourg
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