Mircom International Content Management & Consulting (M.I.C.M.) Limited v Telenet BVBA.

• Jurisdiction: European Union
• Date: 17 June 2021
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Fifth Chamber)

17 June 2021 (*)

(Reference for a preliminary ruling – Intellectual property – Copyright and related rights – Directive 2001/29/EC – Article 3(1) and (2) – Concept of ‘making available to the public’ – Downloading of a file containing a protected work via a peer-to-peer network and the simultaneous provision for uploading pieces of that file – Directive 2004/48/EC – Article 3(2) – Misuse of measures, procedures and remedies – Article 4 – Persons entitled to apply for the application of measures, procedures and remedies – Article 8 – Right of information – Article 13 – Concept of ‘prejudice’ – Regulation (EU) 2016/679 – Point (f) of the first subparagraph of Article 6(1) – Protection of natural persons with regard to the processing of personal data – Lawfulness of processing – Directive 2002/58/EC – Article 15(1) – Legislative measures to restrict the scope of the rights and obligations – Fundamental rights – Articles 7 and 8, Article 17(2) and the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union)

In Case C‑597/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Ondernemingsrechtbank Antwerpen (Companies Court, Antwerp, Belgium), made by decision of 29 July 2019, received at the Court on 6 August 2019, in the proceedings

Mircom International Content Management & Consulting (M.I.C.M.) Limited

v

Telenet BVBA,

intervening parties:

Proximus NV,

Scarlet Belgium NV,

THE COURT (Fifth Chamber),

composed of E. Regan, President of the Chamber, M. Ilešič (Rapporteur), E. Juhász, C. Lycourgos and I. Jarukaitis, Judges,

Advocate General: M. Szpunar,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 10 September 2020,

after considering the observations submitted on behalf of:

– Mircom International Content Management & Consulting (M.I.C.M.) Limited, by T. Toremans and M. Hügel, advocaten,

– Telenet BVBA, by H. Haouideg, avocat, and S. Debaene, advocaat,

– Proximus NV and Scarlet Belgium NV, by B. Van Asbroeck, avocat, and I. De Moortel and P. Hechtermans, advocaten,

– the Italian Government, by G. Palmieri, acting as Agent, and by P. Pucciariello, avvocato dello Stato,

– the Austrian Government, by J. Schmoll, acting as Agent,

– the Polish Government, by B. Majczyna, acting as Agent,

– the European Commission, by F. Wilman and H. Kranenborg and by J. Samnadda, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 17 December 2020,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 3(1) and (2) of 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 (OJ 2001 L 167, p. 10), of Article 3(2), and of Articles 4, 8 and 13 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45, and corrigendum OJ 2004 L 195, p. 16), and of point (f) of the first subparagraph of Article 6(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1), read together with Article 15(1) of 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) (OJ 2002 L 201, p. 37), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 11) (‘Directive 2002/58’).

2 The request has been made in proceedings between Mircom International Content Management Consulting (M.I.C.M.) Limited (‘Mircom’), a company incorporated under Cypriot law, the holder of certain rights over a large number of pornographic films produced by eight undertakings established in the United States and Canada, and Telenet BVBA, a company established in Belgium, providing, inter alia, internet access services, concerning the latter’s refusal to provide information enabling its customers to be identified on the basis of several thousand IP addresses collected, on behalf of Mircom, by a specialised company, from a peer-to-peer network, where certain Telenet clients, by using the BitTorrent protocol, have allegedly made available films from Mircom’s catalogue.

Legal context

European Union law

Intellectual property law

– Directive 2001/29

3 Recitals 3, 4, 9, 10, 23 and 31 of Directive 2001/29 are worded as follows:

‘(3) The proposed harmonisation will help to implement the four freedoms of the internal market and relates to compliance with the fundamental principles of law and especially of property, including intellectual property, and freedom of expression and the public interest.

(4) A harmonised legal framework on copyright and related rights, through increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation …

…

(9) Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Intellectual property has therefore been recognised as an integral part of property.

(10) If authors or performers are to continue their creative and artistic work, they have to receive an appropriate reward for the use of their work, as must producers in order to be able to finance this work. The investment required to produce products such as phonograms, films or multimedia products, and services such as “on-demand” services, is considerable. Adequate legal protection of intellectual property rights is necessary in order to guarantee the availability of such a reward and provide the opportunity for satisfactory returns on this investment.

…

(31) A fair balance of rights and interests between the different categories of right holders, as well as between the different categories of right holders and users of protected subject matter, must be safeguarded. …’

4 Article 3 of that directive, entitled ‘Right of communication to the public of works and right of making available to the public other subject matter’, provides:

‘1. Member States shall provide authors with the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.

2. Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:

…

(c) for the producers of the first fixations of films, of the original and copies of their films;

…

3. The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article.’

– Directive 2004/48

5 Recitals 10, 14 and 18 of Directive 2004/48 are worded as follows:

‘(10) The objective of this Directive is to approximate legislative systems so as to ensure a high, equivalent and homogeneous level of protection in the Internal Market.

…

(14) The measures provided for in Articles 6(2), 8(1) and 9(2) need to be applied only in respect of acts carried out on a commercial scale. This is without prejudice to the possibility for Member States to apply those measures also in respect of other acts. Acts carried out on a commercial scale are those carried out for direct or indirect economic or commercial advantage; this would normally exclude acts carried out by end-consumers acting in good faith.

…

(18) The persons entitled to request application of those measures, procedures and remedies should be not only the rightholders but also persons who have a direct interest and legal standing in so far as permitted by and in accordance with the applicable law, which may include professional organisations in charge of the management of those rights or for the defence of the collective and individual interests for which they are responsible.’

6 Article 2 of that directive, entitled ‘Scope’, provides, in paragraphs 1 and 3(a):

‘1. Without prejudice to the means which are or may be provided for in Community or national legislation, in so far as those means may be more favourable for rightholders, the measures, procedures and remedies provided for by this Directive shall apply, in accordance with Article 3, to any infringement of intellectual property rights as provided for by Community law and/or by the national law of the Member State concerned.

…

3. This Directive shall not affect:

(a) the Community provisions governing the substantive law on intellectual property, Directive 95/46/EC [of 24 October 1995 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31)] …’

7 Chapter II of Directive 2004/48, entitled ‘Measures, procedures and remedies’, comprises Articles 3 to 15. Article 3 of that directive, entitled ‘General obligation’, provides:

‘1. Member States shall provide for the measures, procedures and remedies necessary to ensure the enforcement of the intellectual property rights covered by this...