1709 Blog: for all the copyright community

Tuesday, 9 November 2010

IP meets IP, as Bonnier questions hit the CJEU

For those who can never work out whether 'IP' stands for intellectual property or internet protocol, here's a minor nightmare in the making: there's a new reference listed on the Curia website for a preliminary ruling from the Högsta domstolen, Sweden. It's Case C-461/10, Bonnier Audio AB, Earbooks AB, Norstedts Förlagsgrupp AB, Piratförlaget Aktiebolag, Storyside AB v Perfect Communication Sweden AB.  The reference was lodged with the Court of Justice of the European Union (CJEU) on 20 September 2010, since which time we presume it has been in the pipeline, awaiting multiple translations.

The questions referred for a ruling are as follows:
"1. Does Directive 2006/24 ... on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58 ... (the data storage directive), and in particular Articles 3, 4, 5 and 11 thereof, preclude the application of a national provision which is based on Article 8 of Directive 2004/48 ... on the enforcement of intellectual property rights and which permits an internet service provider in civil proceedings, in order to identify a particular subscriber, to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided a specific IP address, which address, it is claimed, was used in the infringement? The question is based on the assumption that the applicant has adduced evidence of the infringement of a particular copyright and that the measure is proportionate.

2. Is the answer to Question 1 affected by the fact that the Member State has not implemented the data storage directive despite the fact that the period prescribed for implementation has expired?"
Swedish English-language online paper The Local provides some background here for the uninitiated.  Essentially, this is the first piece of litigation to test out Sweden's anti-file sharing law (Ipred), which was passed in April 2009. The CJEU reference comes after five audiobook publishers sought details of internet users who were known to them only by their IP addresses but the ISP, ePhone, was reluctant to comply with this request.  In June 2009 the trial court ruled in favour of the publishers, but the the Court of Appeal (Hovrätten) upheld ePhone's appeal on the basis that the publishers couldn't prove whether the audio books on the server really had been available to the public. It is the further appeal to the Supreme Court (Högsta domstolen) which led to the CJEU reference.

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