Proportionality is the key in music copyright pre-dispute

The Court of Justice of the European Communities gave its ruling this morning in Case C‑275/06, Productores de Música de España (Promusicae) v Telefónica de España SAU, this being a reference for a preliminary ruling by the Juzgado de lo Mercantil No 5 de Madrid, Spain.

In short, Promusicae is a non-profit-making organisation of producers and publishers of musical and audiovisual recordings. In November 2005 it sought a preliminary order against Telefónica, a commercial company whose activities include the provision of internet access services, asking that Telefónica be ordered to disclose the identities and physical addresses of certain persons whom it provided with internet access services, whose IP address and date and time of connection were known. According to Promusicae, those persons were users of the KaZaA peer-to-peer file exchange program and provided access, through shared files on personal computers, to phonograms in which the members of Promusicae held the exploitation rights. According to Promusicae the KaZaA users were engaging in unfair competition and infringing intellectual property rights, so it was entitled to disclosure of their personal details so that civil proceedings could be brought against them. The Juzgado de lo Mercantil No 5 de Madrid agreed and ordered the disclosure.

Telefónica appealed, contending that the communication of the data sought by Promusicae was authorised only in a criminal investigation or for the purpose of safeguarding public security and national defence, not in civil proceedings or as a preliminary measure relating to civil proceedings. Promusicae disagreed, arguing that there relevant provisions of Spanish law must be interpreted in accordance with Community law. The Juzgado de lo Mercantil No 5 de Madrid decided to stay the proceedings and referred the following question to the Court for a preliminary ruling:

"Does Community law, specifically Articles 15(2) and 18 of Directive [2000/31], Article 8(1) and (2) of Directive [2001/29], Article 8 of Directive [2004/48] and Articles 17(2) and 47 of the Charter … permit Member States to limit to the context of a criminal investigation or to safeguard public security and national defence, thus excluding civil proceedings, the duty of operators of electronic communications networks and services, providers of access to telecommunications networks and providers of data storage services to retain and make available connection and traffic data generated by the communications established during the supply of an information society service?".

Today the court has given its answer, in a single paragraph which makes up for, in its length, what it loses in its clarity:

"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 (‘Directive on electronic commerce’), Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 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, in a situation such as that in the main proceedings, an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings. 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".

Says the IPKat, put more simply, the ECJ means this:

"The various European IP and telecoms directives doe 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, but they do require those countries to take care that, when transposing directives, they 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. National law must be interpreted in a way which is consistent with those directives and the courts should not rely on an interpretation of them that conflicts with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality".

Left: the IPKat faces the reality of proportionality in EU law

Says Merpel, now it's all up to the Spanish courts -- and proportionality is a much easier principle to enunciate than it is to apply to any set of facts, particularly where proportionality can take into account so many different considerations but the result in this case is binary: either the personal details of KaZaA users will be disclosed or they won't.

Music and proportionality here and here
An Equal Music here and here