Can the downloading of a file via a P2P network and the simultaneous provision for uploading parts of a protected work be regarded as a communication to the public, even if the individual pieces are unusable?


This was one of the questions of the request of a preliminary ruling in the Case C-597/19 referred by the ondernemingsrechtbank Antwerpen (Companies Court, Antwerp), wherein the main proceedings Mircom brought an action before the Ondernemingsrechtbank Antwerpen seeking that Telenet is ordered to produce the identification data for its customers whose internet connections had been used to share, on a peer-to-peer network utilizing the BitTorrent protocol, films from the Mircom catalogue. The IP addresses of those connections were collected on behalf of Mircom by Media Protector GmbH, a company incorporated under German law, using specialized software.


Legal aspects

Article 3(1) of Directive 2001/29, regarding the Right of communication to the public of works and right of making available to the public another subject matter, lays down that “Member States shall provide authors with the exclusive right to authorize or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.”


For its part, the point C of Article 3(2) of the same Directive provides that “The Member States shall provide for the exclusive Right to authorize 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: […] for the producers of the first fixations of films, of the original and copies of their movies […]


The Court has already had occasion in Judgment of 14 June 2017, Stichting Brein (C‑610/15, EU: C:2017:456, operative part), to hold that the making available and management of a sharing platform on the internet which allows users of that platform to locate copyright-protected works and to share them in the context of a peer-to-peer network constitute communication of those works to the public where they are made available on that network without the consent of the rightsholder.


According to the case-law of the Court, for there to be an act of making available, it is sufficient that a work is made available to a public in such a way that the persons comprising that public may access it, from wherever and whenever they individually choose, irrespective of whether they avail themselves of that opportunity[1]


The Advocate General gave an opinion on 17 December 2020 with a possible response for the first question referred in the Case C-597/19, releading that Article 3 of Directive 2001/29 must be interpreted as meaning that the act of making pieces of a file containing a protected work available for download within the context of a P2P network, even before the user concerned has himself downloaded that file in its entirety, falls within the scope of the Right to make works available to the public following that article, and that user’s knowledge of the facts is not decisive.


The Court of Justice of the EU, in its judgment of 17 June 2021, affirmed the response given by the Advocate General.


Productions companies can register the IP to claim damages before a civil court for prejudice allegedly caused by the users who download or share files in P2P Networks with data protection.


The Court of Justice of the EU, in its judgment of 17 June 2021, in its reply to another of the questions raised in that case concerning whether the systematic registration and general further processing of the IP-addresses of a ‘swarm’ of ‘seeders’ (by the licence holder himself, and by a third party on his behalf) legitimate under the General Data Protection Regulation, and specifically under Article 6(1)(f) thereof, gave an unexpected interpretation. 


The Court decided that the Point (f) of subparagraph 1 of Article 6(1) of Regulation (EU) 2016/679  (“the processing is lawful when it is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child”), must be interpreted as meaning that the registration of IP addresses of users and the communication of their names and postal addresses to the rightsholder or to the third party to enable action for damages to be brought is permissible under certain conditions. It must be justified, proportionate and not abusive and have its legal basis in a national legislative.     


  [1] 41) Opinion of Advocate General on 17 December 2020


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