Intellectual property & Technology | Copyright

Intellectual property & Technology | Copyright

In September 2016, the Court of Justice of the European Union (the ”Court”) ruled that a professional who offers free of charge access to a Wi-Fi network within its premises cannot be held liable for copyright infringements committed by users of that network.

However, the professional may be required to put an end to, or prevent, such infringements, by way of an administrative or court order.

Facts of the case

In the case cited above, a German retailer had offered access, within its store, to a Wi-Fi hotspot network free of charge to the general public, in order to draw the attention of prospective customers to his goods and services.

A customer connected to his Wi-Fi network and downloaded a musical work that was unlawfully made available, without the consent of the copyright holder. Although the retailer was not the actual party infringing the copyright, the retailer was sought as being indirectly liable on the grounds that it had not secured its Wi-Fi network against illegal downloading.

Relevant legal texts and statements of the court

Pursuant to the E-commerce Directive, intermediate providers of “mere conduit” services (such as offering the access to a free Wi-Fi network) shall not be held liable for the information transmitted in the communication network, on condition that the provider (i) does not initiate the transmission, (ii) does not select the receiver of the transmission, and (iii) does not select or modify the information contained in the transmission.

Firstly, the Court stated that making available to the public a free Wi-Fi network in order to draw customers’ attention constitutes an “information society service” under the E-commerce Directive.

Subsequently, the Court asserted that, where the above three conditions are cumulatively met, the Wi-Fi network provider (such as the retailer in the case at hand) may not be held liable and the copyright owner will not be entitled to claim compensation on the grounds that the network was used by third parties to infringe its rights.

However, the E-commerce Directive does not preclude the copyright holder from obtaining, from a national authority or court, an order against the continuation of the copyright infringement committed by third parties. As a general rule, the Wi-Fi network provider may choose on its own the technical measures in order to comply with such an obligation. In any case, it cannot be obliged to take measures that would hinder the freedom to conduct a business and the freedom of information of the network users.

In this regard, the Court found that simply securing the Internet connection by means of a password is not sufficient. Users should reveal their identity prior to obtaining the required password, so that they are prevented from acting anonymously. This would represent balanced and reasonable measures capable of impeding network users from infringing copyrights.

What should be noted

A Wi-Fi network provider (such as a retailer) would not be held liable for the infringements made via such network by third parties.

However, a copyright owner, by way of an administrative or court order, may impose to the network provider to implement an online registration process which requires users to give details about their identity.

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