Ieva Kisieliute

FACULTY OF LAW
Lund University
Ieva Kisieliute
A “fair balance” between

intellectual property rights and
other fundamental rights?
Master thesis
30 credits
Supervisor: Professor Xavier Groussot
Master Programme in European Business Law
Spring 2012
Contents
SUMMARY 1
SAMMANFATTNING 2
PREFACE 3
ABBREVIATIONS 4
1 INTRODUCTION 5
1.1 Purpose 8
1.2 Material 9
1.3 Methods 10
1.4 Delimitations 11
1.5 Outline 12
2 PART I: LEGISLATION 14
2.1 EU: primary law 14
2.2 International law 16
2.3 EU: secondary law 16
2.3.1 Copyright in the Information society: InfoSoc Directive 2001/29 17
2.3.2 Enforcement of copyright: IPRED Directive 2004/48 18
2.3.3 The role of the intermediaries: E-commerce Directive 2000/31 19
2.3.4 The Internet users: Personal Data Protection Directive 95/46/EC 19
2.3.5 E-privacy Directive 2002/58/EC 20
2.3.6 Practical use 21
3 PART II: CASE LAW 22

3.1 Promusicae: a (not so solid?) ground for future judgements 23
3.1.1 Facts 23
3.1.2 Issues 24
3.1.3 Findings of the Court 24
3.1.3.1 Freedom of choice for the Member States… 24
3.1.3.2 …limited by the Charter 25
3.1.4 Scarlet Extended v. SABAM: “NO” to general monitoring 27
3.1.5 Facts 27
3.1.6 Issues 27
3.2 SABAM v. Netlog: the sequel 29
3.2.1 Facts 29
3.2.2 Issues 30
3.3 Bonnier: the combo breaker 31
3.3.1 Facts 31
3.3.2 Issues 31
4 PART III: BALANCING – THE PIECES 34

4.1 The theory of balancing 34
4.2 The rights involved 38
4.2.1 Copyright 38
4.2.1.1 Exceptions from the exclusive right 39
4.2.1.2 The impact of unauthorised file sharing 40
4.2.2 Freedom to conduct a business 43
4.2.3 Protection of personal data 45
4.2.4 Freedom of expression and information 47
4.2.5 Conclusion 48
4.2.6 Part III – post scriptum 48
5 PART IV: STRIKING A FAIR BALANCE – HOW TO SOLVE

THE PUZZLE 51
5.1 Is there a need for stricter measures? 52
5.2 Are stricter measures possible? 53
5.3 What is next? 58
5.3.1 Business models 59
5.3.2 DRM 61
5.3.3 Business combined with DRM 62
5.3.4 Taxation 63
5.3.5 Changing copyright 63
6 CONCLUSIONS 67
BIBLIOGRAPHY 69
TABLE OF CASES 74
Summary
Recent development of case law emphasises the need to strike a fair balance
between intellectual property rights and other fundamental rights. In theory,
balancing of various fundamental rights is not a new concept. However, in
practice, striking a fair balance between intellectual property rights and
other fundamental rights is quite a new and problematic issue due to
digitalisation, which has created new ways for the copyright holders to
produce and distribute their works, but also made it easier for the users to
share culture. Since the copyright holders have the exclusive right of
distribution, unauthorised file sharing online normally constitutes a
copyright infringement. Most problems arise when the copyright holders
attempt to take measures against the infringers.
Looking at the relevant legislation and at the case law, it is far from clear
what measures are likely to strike a fair balance between the fundamental
rights involved. In this thesis, various aspects of balancing are explored,
discussing whether a fair balance between intellectual property rights and
other fundamental rights can be achieved in practice. Based on a thorough
analysis of case law, the act of striking a fair balance is compared with the
mathematical expression of inverse proportionality; depending on the need
to protect the very substance of copyright, the other rights can be restricted
accordingly. The scope of the various rights is presented, concluding that
since file sharing impairs the very substance of copyright, the other rights
can be restricted, but only insofar as the restriction does not impair the very
substance of those rights.
The practical possibilities to strike a fair balance are discussed and various
alternatives are presented. Preventive measures that involve filtering or
blocking of information are discarded as unfeasible because they are likely
to be disproportionate or technically ineffective. Tax measures to
compensate for unauthorised file sharing are discussed briefly and rejected
as an unviable solution. While ACTA is briefly presented as an indicator of
tendencies towards stricter legal protection of copyright, business models
and digital rights management are suggested as the most realistic ways to
prevent unauthorised file sharing.
Finally, the very core of the file sharing problem is examined. It is

suggested that due to the long term of copyright protection, most culture
cannot be shared freely, which means that most file sharing infringes
copyright. A shorter term of protection is advocated as beneficial both for
the society and for the copyright holders. It is concluded that the current
state of law protecting intellectual property rights does not serve the needs
of the Information society and that innovative business models could be
used as a temporary solution when a balance between copyright and other
fundamental rights cannot be fully achieved by other means.
1
Sammanfattning
Senaste utvecklingen av rättspraxis betonar behovet av att uppnå en korrekt
balans mellan immateriella rättigheter och andra grundläggande
rättigheter. Själva balanseringen är i sig inget nytt koncept, men i vissa
sammanhang, framförallt i fildelningssammanhanget, är det väldigt
problematiskt att uppnå en korrekt balans mellan de olika grundläggande
rättighteterna.
Digitaliseringen har har skapat nya möjligheter för upphovsrättsinnehavare

att producera och distribuera sina verk, men har också gjort det lättare
för användare att dela kultur. Eftersom upphovsrättsinnehavarna har
ensamrätt för distribution så utgör fildelning upphovsrättsintrång. De flesta
problem uppstår när upphovsrättsinnehavarna försöker vidta effektiva
åtgärder mot sådana intrång; varken lagstiftaren eller EU domstolen har
formulerat konkreta och tydliga regler för vilka typer av åtgärder som kan
uppnå en korrekt balans mellan de grundläggande rättigheterna.
I den här avhandlingen har olika aspekter av balansering diskuterats. Baserat

på en grundlig analys av rättspraxis, har balanseringen jämförts med
omvänd proportionalitet; ju större behov man har av att skydda en rättighet
desto mer kan de andra rättigheterna inskränkas, förutsatt att inskränkningen
inte utgör ett orimligt och oacceptabelt ingripande som påverkar själva
kärnan i rättigheten.
De praktiska möjligheterna att uppnå en korrekt balans diskuteras och olika

alternativ presenteras. Förebyggande åtgärder som innebär filtrering eller
blockering av datatrafik avvisas som oproportionerliga eller tekniskt
ineffektiva. Detta följs av en kortfattat diskussion av skattemässiga åtgärder
som avvisas som praktiskt ogenomförbara. Därefter presenteras ACTA som
en indikator på tendenser till strängare upphovsrättskydd, men
affärsmodeller och digital rights management föreslås som de mest
realistiska sätten att förhindra otillåten fildelning.
Slutligen argumenteras det att den nuvarande upphovsrättslagstiftningen inte

tillgodoser informationssamhällets behov. En kortare skyddstid förespråkas
för att lösa fildelningsproblemet och innovativa affärsmodeller föreslås som
en tillfällig lösning när en korrekt balans mellan upphovsrätt och andra
grundläggande rättigheter inte kan uppnås på andra sätt.
2
Preface
“So many times, it happens too fast
You trade your passion for glory
Don't lose your grip on the dreams of the past
You must fight just to keep them alive.” 1
I would firstly like to thank Professor Xavier Groussot – not only for being
my supervisor, but also for these great two years at the Master Programme
of European Business Law, and especially for the European Law Moot
Court experience. Thank you for being my guru of EU law.
I would also like to thank Zlatan Balta for all the great projects we have
taken up and completed together (and once again, thanks for finding the
Scarlet Extended case – who knows what this master thesis would have
been about if you had not told me about that case).
I would like to thank everyone who has been there for me – especially my
Mom for helping me believe in myself even during the darkest times. ♥
Finally, I would like to thank my Moot Court teammates and coaches for
probably the craziest, the most hectic and the most fulfilling time of my life.
Without the Moot Court, I would certainly have had more sleep, social
activities and more time for this thesis – but this whole experience taught
me so much in terms of law and in terms of life that I do not regret a single
second. Blue Tigers forever.
Lund, May 2012
Ieva Kisieliute
1
Survivor – Eye of a Tiger (released as a single on 29 May 1982)
3
Abbreviations
ACTA Anti-Counterfeiting Trade Agreement
AG Advocate General
ChFR Charter of Fundamental Rights of the European

Union
CJEU Court of Justice of the European Union
DRM Digital rights management
ECHR European Convention on Human Rights and

Fundamental Freedoms
ECtHR European Court of Human Rights
ISP Internet service provider
IPRED Directive on the enforcement of intellectual

property rights
n.y.r. Not yet reported
p2p Peer-to-peer
TEU Treaty on European Union
TRIPS Agreement on Trade-Related Aspects of

Intellectual Property Rights
4
1 Introduction
As a 90’s kid, I belong to the generation that could spend hours catching
favourite songs on the radio and recording them on a cassette.
Later, cassettes were replaced by CDs, and the radio was more or less
replaced by the computer. Mp3 was the new king, but not only did the
mixtape culture survive; it became stronger than ever, as it took only a few
clicks to download a song.
Of course, a homemade collection of music would never replace an album;

it would never replace the joy of having all the songs in one place, alongside
with a booklet of lyrics and band photos. It would never replace the touch,
even the smell, but most of all, the pride of owning an original record. Well,
of course, it was not literally original; by saying “original”, I mean a copy
reproduced and distributed by the right holder.
I cannot really claim that I was truly concerned about copyright issues back
in the day. It was not really a matter of right or wrong; it was truly a matter
of money. When you are in your teens and have a very limited amount of
savings, you cannot possibly buy all the records of the bands that you seem
to like.
Some songs are not played on the radio equally often as others, and some
songs are not available on streaming services. Therefore, buying a whole
album can be like lottery; if you do not get a decent chance to listen to all
the songs in the album beforehand, you might as well end up buying a pig in
a poke. Moreover, even if you like surprises, buying a whole album and
realising that you only like a couple of songs in it does not erase the fact that
the album has been sold. It is like sending the wrong signals to the artist:
“Yes, please, we love your music, keep on making it!”
Culture is expensive. The worst thing is, “good culture” and “bad culture” –
which is a matter of taste, of course – both cost the same. Therefore, it
makes sense to sample some songs – or a whole album, for that matter – and
decide whether it is worth your money.
Now, this would have been a good example when buying tangible media
was considered a reasonable choice. However, emerging new technologies
have brought along some major changes. CDs exist alongside with digital
media (and still cost pretty much the same as they did ten years ago), but
they are on the edge of extinction, just like cassette tapes were some 15
years ago. The times have changed, sure enough. However, just as the
transition from cassette tapes to CDs was a rather natural process, why
should there be any problems with the process of digitalisation? It simply
gives way for more convenient solutions, does it not?
5
The answer is both “yes” and “no”, all because of the very specific character
of digital media. Over 20 years ago, Pamela Samuelson proposed taxonomy
for digital media to describe its fundamental characteristics and to
emphasise the connected problems. The essential features can be
summarised as follows: 2
1) Digital media is easy to replicate while keeping the same quality as the
original; this poses difficulties for copyright law.
2) Digital copies can be easily transmitted; the same copy can be used
simultaneously on several computers, which makes copyright enforcement
more complicated and motivates right holders to restrict access in order to
derive more revenue from uses than from sales.
3) Digital media can be easily modified and manipulated until it becomes

unrecognisable as a derivation from the original work;
4) Copyrighted works in a digital form are less differentiated by type

because they are in the same medium;
5) Digital media is very compact; complex data can be stored in a small

place, but these contents cannot be perceived by humans without
technological means;
6) Digital media is “non-linear”: it is connected with the potential to create

new systems allowing users to find and browse information, but also
encouraging new intellectual property law questions.
Digitalisation has without a doubt made culture more accessible, however, it

has also “fundamentally changed how copyright laws must operate in order
to be effective”. 3 We live in a world of “digital abundance”, where each
copy of a work is just as good as the original and can be distributed globally
without any extra cost. 4
A well-known social advertisement against piracy says, “You wouldn’t steal

a car. You wouldn’t steal a handbag. You wouldn’t steal a television. You
wouldn’t steal a movie. Downloading pirated films is stealing. Stealing is
against the law. Piracy. It’s a crime.” 5
However, purely technically, obtaining a copy does not affect the “original”.
To put it bluntly, digital copying it is by no means the same as stealing a
tangible object; when stolen, tangible objects are no longer in your
possession. As Lawrence Lessig expressed in his book “Free culture” 6, the
2
N. LUCCHI: Digital Media & Intellectual Property/Management of Rights and Consumer
Protection in a Comparative Analysis, p. 13
3
W. PATRY: How to fix copyright, p. 37
4
W. PATRY, How to fix copyright, p. 39
5
http://www.youtube.com/watch?v=HmZm8vNHBSU, 2012-05-08
6
http://www.authorama.com/free-culture-1.html, 2012-05-07
6
difference between downloading a song and stealing a CD is that if you steal
a CD, then there is one less CD to sell.
Digital copying, on the contrary, can be seen as an act of multiplying the

work rather than physically stealing it. Then why is file sharing so wrong?
Well, there are several reasons. Firstly, given current copyright laws, it is
not up to the user to decide what to share. Reproduction and distribution is
in generally the exclusive right of the copyright holder, 7 and the rule of
exhaustion does not apply to online services, 8 clearly distinguishing digital
copies from tangible ones.
Secondly, when tangible media is bought, there is no doubt that artists will
be paid. However, when it comes to digital media, due to the availability of
unauthorised copies, the incentive to pay for culture might decrease: why
would you want to pay for something when you can get it for free? You may
wish to pay for a legitimate copy in order to show support for the artist, but
you may as well not wish to do so; in the end, what can they do against you?
A typical situation occurs, for instance, when the copyright holder has no
approved of file sharing, but someone uploads the copyrighted material
online anyway, and others start downloading the material. By engaging in
unauthorised file sharing, you infringe intellectual property rights and the
right holder has a legal possibility to take measures against you.
The Copyright
The ISP provides
holder asks the
Internet service
ISP to help fight
to the User (and
the infringement,
thus can identify
i.e. by helping
the User)
identify the User
Using the
Internet service,
Such file sharing
the User shares
infringes the
files online
rights of the
without the
Copyright holder
Copyright
holder's consent
Figure 1
The service technically necessary for the sharing, but not created solely for
the purposes of file sharing, such as web hosting (or simply access to the
Internet), is provided by an intermediary. The copyright holder, when he or
she finds out about the file sharing, contacts the intermediary and asks the
7
Art. 2 and 3(1) Directive 2001/29/EC (“InfoSoc Directive”)
8
Recital 29 of the Preamble to the InfoSoc Directive
7
intermediary to do something in order to stop or prevent such file sharing
for instance, to disclose the personal data of the infringer. A dispute arises if
the intermediary refuses to disclose the data. However, this is not really the
main issue for the thesis; the focus is on what measures can be taken against
the file sharers in order to stop or prevent unlawful file sharing. In other
words; what measures are effective enough to enforce intellectual property
rights, but not too strict, so that such enforcement does not undermine the
rights of the file sharers and the intermediaries?
Even though all the rights involved are protected by primary and secondary
law, a clear guidance cannot be deduced from the law. Directives leave a
certain margin or discretion to the Member States, allowing them to find the
most suitable ways to safeguard the rights. As the Court put in Promusicae, 9
it is up to the Member States to transpose the Directives into national law,
but when doing so and when applying the implementing laws, the Member
States must ensure that a fair balance is struck between the fundamental
rights involved.
The transition from tangible media to digital media is not as smooth as it

may seem. It has become even more complicated due to the recent
constitutionalisation of the Charter of Fundamental Rights, 10 meaning, i.a.,
that all the fundamental rights in theory have the same value; however, they
may be restricted in order to protect the rights and freedoms of others. 11
Therefore, in a way, balancing of more than two fundamental rights
resembles an equation. Similar to mathematical equations, this legal
“equation” can only be correct with certain values of the variables.
Balancing is a great slogan. 12 Indeed, in the perfect case scenario, an

optimal balance would be achieved, meaning that copyright could be
efficiently protected without jeopardising the rights of others. This balance
is the core of a fully functioning information society. However, can the
ultimate balance ever be achieved, given current legal possibilities?
1.1 Purpose
The aim of this thesis is to examine the notion of “fair balance” in cases of
the CJEU concerning the clash of intellectual property rights and other
fundamental rights. The key issue is whether it is possible to maintain an
adequate level of protection for intellectual property rights 13 without
compromising the right to personal data protection 14 and the freedom to
9
Case C-275/06 Promusicae, para.68
10
Art.6(1) TEU
11
Art.52(1) ChFR
12
X. GROUSSOT, “Rock the KaZaA: Another Clash of Fundamental Rights”, CLMRev. 45:
1745-1766, 2008, at p.1760
13
Art.17(2) ChFR
14
Art.8 ChFR
8
receive or impart information 15 of the Internet users and the freedom to
conduct a business 16 of the intermediaries.
To find out whether, and with what values this legal equation could be
solved, I will briefly examine the scope of the rights and discuss what
factors could possibly increase or undermine the value of the rights that are
being balanced. I will then speculate on the practical solutions that could
lead to a fair balance.
1.2 Material
I have chosen to base my legal analysis mainly on cases from the CJEU. I
have also sought guidance and support for my arguments in scholarly
articles and books. However, given the limited availability of scholarly
works that are of direct relevance for this thesis, I had to search through
countless databases and read a considerable amount of material just to find
out that it was not exactly what I had been looking for. Nevertheless, I
managed to find several works of immediate relevance for this thesis, and
those are listed below.
Concerning constitutional issues, the most useful source was Xavier

Groussot’s article “Rock the KaZaA: Another Clash of Fundamental
Rights”. 17 I also used Robert Alexy‘s article “Balancing, constitutional
review, and representation“ 18.
Regarding intellectual property law, I got most of the inspiration from

Nicola Lucchi’s “Digital Media & Intellectual Property. Management of
Rights and Consumer Protection in a Comparative Analysis”, 19 Michele
Boldrin and David K. Levine’s “Against Intellectual Monopoly”, 20 William
Patry’s “How to fix Copyright” 21, and Lawrence Lessig’s “Free culture” 22. I
have also used several case notes, articles containing statistical data 23, and
articles on the most recent copyright enforcement issues, such as ACTA. 24
15
Art.11 ChFR
16
Art.16 ChFR
17
X. GROUSSOT:”Rock the KaZaA: Another Clash of Fundamental Rights”, CMLRev. 45:
1745-1766, 2008
18
R. ALEXY: “Balancing, constitutional review, and representation“, International Journal
of Constitutional Law, 10/2005, Volume 3, Issue 4, 2005, pp. 572–581
19
N. LUCCHI: Digital Media & Intellectual Property/ Management of Rights and Consumer
Protection in a Comparative Analysis, Springer-Verlag Berlin Heidelberg 2006
20
M. BOLDRIN & D. K. LEVINE: Against Intellectual Monopoly, Cambridge University
Press, 2008
21
W. PATRY: How to Fix Copyright, Oxford University Press, 2011
22
L. LESSIG: Free culture, available at http://www.authorama.com/free-culture-1.html ,
(2012-04-27)
23
F. OBERHOLZER & K. STRUMPF: “File Sharing and Copyright”, Innovation Policy and
the Economy, Volume 10, University of Chicago Press, 2010, available at
http://www.nber.org/chapters/c11764 (2012-04-27)
24
A. J. CERDA SILVA: “Enforcing Intellectual Property Rights by Diminishing Privacy:
How the Anti-Counterfeiting Trade Agreement Jeopardizes the Right to Privacy”, 26 Am.
U. Int'l L. Rev. 601 2010-2011
9
1.3 Methods
A “fair balance” is always a matter of assessment; different interests have to
be taken into account. More than that, the interpretation of the law depends
on the context of the legal text and the context of the reader. Possible
interpretations or understandings cannot be eliminated only because they are
not explicitly included in the text: “[t]here is always more to the text than
what the author has written.” 25 This is especially apparent in cases of
balancing, where two or more interests have to be weighed against each
other; while the applicable law may be the same, the outcome in the cases of
balancing is directly dependant on the context.
The attempt to find the “limits” of the various fundamental rights in order to
strike a fair balance is to a certain extent inspired by deconstructionist ideas,
even though I am fully aware of the fact that deconstruction is “not a
method and cannot be transformed into one“. 26 Therefore, I use those ideas
as a support for something that mostly resembles the teleological method:
when examining the various fundamental rights, I give priority to the
interpretation that gives the most effect and value to the right at stake. 27
Jacques Derrida 28 described deconstruction as “an unclosed, unenclosable,

not wholly formalizable ensemble of rules for reading, interpretation and
writing.” 29 Without openness, justice would become stabilised by the “force
of law”. 30 The “openness” allows a potential of change:
“Our lives change, and so do our values, as individuals and as

societies. Deconstruction does not prescribe change. Life does that.
Rather, it recognises that situations change, and that this is a good
thing, and that a postmodern jurisprudence can best accommodate,
indeed celebrate, this fact”. 31
The outline of this thesis is based on a method that can be abbreviated as

CLEO (Claim, Law, Evaluation, Outcome). 32 It will help me analyse the
current state of law and determine how the law can fulfil its purpose to the
maximum.
Fundamental rights, though equal in law, are not always treated equally in
practice due to various factors. The clash of fundamental rights could be
25
I. WARD: Introduction to Critical Legal Theory, p. 167
26
J. DERRIDA: “Letter to A Japanese Friend”, in Derrida and Différance, p. 3
27
B. LEHRBERG: Praktisk Juridisk Metod, p. 120
28
Jacques Derrida (1930-2004) was a French philosopher who developed the critical legal
theory known as deconstruction.
29
J. DERRIDA: “The time of a thesis: punctuations”, in ALAN MONTEFIORE: Philosophy in
France Today, p.40
30
I. WARD: Introduction to Critical Legal Theory, pp. 168-169
31
Ibid. See also J. DERRIDA: “The Force of Law: the mythical foundations of authority”, 11
Cardozo L Rev 921, 1990, pp.945-47, 959-61, 969-73.
32
S.I. STRONG: How to write law essays and exams, 2006, pp.113, 120-127
10
compared with a “classical philosophical opposition”, which never
encounters “peaceful coexistence” of the two opposing concepts, but rather
a “violent hierarchy”, where one of the two dominates over the other. 33 The
claim flowing from case law is that a fair balance has to be struck between
the various fundamental rights involved when the Member States transpose
secondary legislation protecting these rights and/or apply the implementing
national legislation. 34
The law (primary law, secondary law and case law) defines the scope of
those rights. Firstly, I will summarise relevant primary and secondary law.
Secondly, I will have a closer look at a number of recent cases that concern
the clash between intellectual property rights and other fundamental rights
and explain the direction in which the law is moving. 35 To define the
development of case law, I will follow three steps 36: 1) summarise the
relevant case law (define the facts and the outcome); 2) generalise the
outcome in order to establish a legal rule; 3) place the legal rule in its
context. In order to establish the context, I will briefly examine the features
of the fundamental rights involved.
Evaluation comprises the application of the law; in other words, having

established the need to balance the rights and the scope of those rights, I will
discuss whether a fair balance indeed can be struck in practice.
Finally, I will tie together the various strands of argumentation to define the
outcome. In this step, I will briefly touch upon the possibility of adopting
non-legislative measures that could lead to a fair balance. I will also discuss
the need for legal reform 37
1.4 Delimitations
Firstly, even though the thesis concerns striking a fair balance between
intellectual property rights and other fundamental rights, for the purpose of
discussion, the focus is on copyright in the digital media and the ways to
effectively protect it without undermining other fundamental rights. When
necessary, I will use some case law concerning other intellectual property
rights by analogy; however, the substance and scope of copyright protection
will be in the centre of attention.
Secondly, the focus is on copyright of audio and video records, as this area
is extremely affected by online piracy and therefore very controversial. For
33
J. DERRIDA: “Interview with Jean-Louis Houdebine and Guy Scarpetta” in Positions,
1981, pp. 41-44
34
Case C-275/06 Promusicae, para.68; Court order in C-557/07 Tele2 v. LSG, para. 28;
Case C-70/10 Scarlet Extended, para.45; Case C-360/10 SABAM v. Netlog, para.43; Case
C-461/10 Bonnier, para.56
35
S.I. STRONG: How to write law essays and exams, p. 22
36
B. LEHRBERG: Praktisk Juridisk Metod, p. 120
37
S.I. STRONG: How to write law essays and exams, p. 116
11
the sake of simplicity, I will only explicitly refer to copyright when I in fact
mean both copyright and related rights.
Thirdly, the focus is on civil proceedings and not on criminal procedures

and penalties. This delimitation is based on the limited scope of IPRED, as
expressed in Article 3.3(b) IPRED 38.
Fourthly, this thesis is based on an EU perspective. Even though I will

briefly mention international agreements such as TRIPS and ACTA for the
purpose of discussion, I will not touch upon matters of purely international
law or US law, as they require an in-depth knowledge and do not directly
fall within the scope of this thesis. Therefore, I will not discuss SOPA39,
PIPA 40 or CISPA 41, despite their topicality.
Finally, I will focus on the legal implications of recent case law

development. I will thus not provide any concrete technical or economical
solutions but rather discuss the hypothetical possibilities that could help to
achieve a fair balance in practice. Competition law concerns that might
follow from the suggested solutions are also excluded from the scope of this
thesis.
1.5 Outline
Apart from the introduction, the thesis consists of four parts. The first part
contains a presentation of relevant legislation: the relevant provisions of
TRIPS; the relevant articles of the Charter of Fundamental Rights; the
relevant Directives for the protection of intellectual property rights and
personal data.
The legislation seems to be clear; however, when applied in practice, it can

cause a clash of fundamental rights, which can only be resolved by means of
balancing of the various fundamental rights involved when transposing the
secondary law into national law and applying the implementing national
law. Therefore, the second part of this thesis covers case law of the CJEU
that concerns balancing between intellectual property rights and other
fundamental rights.
The third part of the thesis encompasses a discussion of the actual

balancing. In this part, the theory of balancing is explained and the relevant
fundamental rights are presented briefly, including the most evident
tendencies in case law development and legislation concerning their
substance and scope.
38
Directive 2004/48/EC (“IPRED”)
39
Stop Online Piracy Act
40
Protect IP Act
41
Cyber Intelligence Sharing and Protection Act
12
In the fourth part, various practical solutions are suggested and discussed in
the light of the scope of the rights and the principle of proportionality. The
discussion is followed by final conclusions.
13
2 Part I: Legislation
The legal mechanisms that should be used to achieve a fair balance between
copyright and other fundamental rights are contained in a variety of
legislative acts. Most importantly, the fundamental rights that have to be
balanced are enshrined in the Charter of Fundamental Rights. The most
relevant articles will be presented below, while a more detailed examination
of their scope and application will be provided in Part III.
Union law must as far as possible be interpreted in the light of the TRIPS
agreement, 42 where it regulates a field to which that agreement applies; 43
therefore, the summary of relevant legislation starts with a brief presentation
of the most relevant parts of the TRIPS agreement. It is a matter of settled
case law that international agreements have to be placed below primary law
but above secondary legislation in the hierarchy of norms. 44
The actual balancing has to be conducted at the national level, when the
Member States transpose secondary law. The national authorities and courts
of the Member States are obliged to their national law in conformity with
Union law; they must not rely on an interpretation of the directives which
could conflict with the fundamental rights and the general principles of
Union law, such as the principle of proportionality. Since the domestic laws
may vary due to the margin of appreciation given to the Member States, the
best way (or the only reasonable way for the purposes of this thesis) to
present the legal basis for the balancing is to provide a brief summary of
relevant secondary law.
2.1 EU: primary law

The Charter of Fundamental Rights became a legally binding document in
December 2009, when the Lisbon Treaty entered into force. Pursuant to
Article 6(1) TEU, it now has the same legal value as the Treaties. However,
even before the Charter became legally binding, it had been occasionally
used by the Court as a major source of inspiration, for instance, in Laval,45
Unibet 46 and Kadi 47. According to Article 51(1) of the Charter and settled
case law, 48 it is undisputable that the Charter applies in situations where the
Member State is implementing EU law. Such were the situations in the
42
Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994
43
Case C-275/06 Promusicae, para.60, Joined Cases C-300/98 and C-392/98 Dior and
Others, para. 47, Case C-431/05 Merck Genéricos & Produtos Farmacêuticos para. 35.
See also A. ROSAS & L. ARMATI: EU Constitutional Law: An Introduction, p. 61
44
A. ROSAS & L. ARMATI: EU Constitutional Law: An Introduction, p. 48
45
Case C-341/05 Laval
46
Case C-432/05 Unibet
47
Joined cases C-402/05 P & C-415/05 P Kadi
48
Case 5/88 Wachauf
14
Promusicae case and the subsequent case law 49 in which the Court relied
directly on the balancing test set out in Promusicae.
As stated in paragraphs 62 to 68 of Promusicae, a balance has to be struck

between the rights of the copyright holders and the rights of the others
involved (such as intermediaries and users of their service) when the
Member States implement measures to enforce intellectual property rights.
The protection of the right to intellectual property is enshrined in Article

17(2) of the Charter. The wording of Article 17(2) seems to be ambiguous;
no explicit reference is made to the limited nature of intellectual property
rights. 50 However, Article 17(2) could also be seen as a simple clarification
of Article 17(1), meaning that there is “absolutely no justification to expand
remedies on this ground.“ 51 Indeed, neither the wording of the provision nor
the Court’s case law implies that the right is inviolable.
The intermediaries enjoy the freedom to conduct a business (as defined in

Article 16 of the Charter). The users of their service, firstly, have the right to
protection of personal data (Article 8 of the Charter), and such data must be
processed fairly for specified purposes and on the basis of the consent of the
person concerned or some other legitimate basis laid down by law.
Secondly, the users have the right to freedom of expression and information,
granted in Article 11 of the Charter. This right includes i.a. the freedom to
receive and impart information and ideas without interference by public
authority and regardless of frontiers. Finally, pursuant to Article 47 of the
Charter, everyone whose rights and freedoms granted under EU law are
violated has the right to an effective remedy before a tribunal. This is
especially important for the copyright holders when they enforce their
property rights.
The mere definition of the rights does not seem to cause any problems: in
cases concerning unauthorised file sharing, the right to intellectual property
has been infringed and needs to be protected, but the means of enforcement
have to respect the rights and interests of the others involved. Simple as that.
It is the constitutional status of the Charter that adds a fair share of
confusion into a balancing: all of the fundamental rights that have to be
balanced enjoy equal protection; moreover, they all can be restricted if that
is necessary in order to protect other rights, as stated in Article 52(1) if the
Charter. How is that supposed to help in practice? Well, further
clarifications have to be sought in international agreements (such as TRIPS,
when applicable) and in secondary law, that protects the rights involved in
the balancing.
49
Case C-70/10 Scarlet Extended, Case C-360/10 SABAM v. Netlog and Case C-461/10
Bonnier
50
C. GEIGER:”Intellectual property shall be protected!? Article 17(2) of the Charter of
Fundamental Rights of the European Union: a mysterious provision with an unclear
scope”, E.I.P.R. 2009, 31(3), 113-117, at p.115
51
Ibid., p.116
15
2.2 International law
TRIPS requires i.a. that all limitations and exceptions of exclusive rights
must satisfy the three step-test: the limitations and exceptions confine to
certain special cases “which do not conflict with a normal exploitation of the
work and do not unreasonably prejudice the legitimate interests of the right
holder”. 52 The cases discussed in this thesis concern measures against illegal
file sharing. Therefore, Articles 41, 42 and 47 of TRIPS have to be
considered, as they regulate enforcement of intellectual property rights.
Pursuant to Article 41, Members shall ensure that enforcement procedures

are available under their law in order to permit effective action against any
act of infringement of intellectual property rights, including expeditious
remedies to prevent infringements and remedies that constitute a deterrent to
further infringements. These procedures shall be applied in such a manner as
to avoid the creation of barriers to legitimate trade and to provide for
safeguards against their abuse. Such procedures concerning the enforcement
of intellectual property rights shall be “fair and equitable”, meaning that
they shall not be unnecessarily complicated or costly, or entail unreasonable
time limits or unwarranted delays.
Article 42 obliges Members to make available to right holders civil judicial

procedures concerning the enforcement of intellectual property rights.
Article 47 provides that Members may allow their judicial authorities to
order the infringer to inform the right holder of the identity of third persons
involved in the production and distribution of the infringing goods or
services and of their channels of distribution, unless this would be out of
proportion to the seriousness of the infringement.
These provisions require the effective protection of intellectual property

rights and the granting of judicial remedies for their enforcement. They
however do not compel the Member States to lay down an obligation to
communicate personal data in the context of civil proceedings. 53 Neither do
they provide any guidelines as to what a fair balance could be; they only
emphasise the need to ensure enforcement of intellectual property rights and
thus could be seen as adding value to the side of copyright on the weighing
scale. The framework for the actual balancing of the various fundamental
rights is respective provisions of secondary law, which leaves a margin of
appreciation for the Member States. 54
2.3 EU: secondary law

The substance of copyright, the legal ways to enforce copyright and the
adequate level of private data protection are all defined in secondary law.
52
Art.13 TRIPS; L. BENTLY & B. SHERMAN: Intellectual Property Law, p.43
53
Case C-275/06 Promusicae, para.60
54
M. LEISTNER: “Copyright law in the EC: status quo, recent case law and policy
perspectives”, CMLRev. 46: 847-884, 2009, at p.873
16
When the substance of copyright (defined in the InfoSoc Directive) is
infringed, enforcement measures (based on IPRED) are used to hold the
infringers responsible. The Member States may choose whether or not, and
in what form to provide for a right to disclosure of information in the
context of civil proceedings. 55 In a perfect case scenario, it should be
possible to enforce copyright without putting an unreasonable burden on the
intermediary and without jeopardising the rights of the Internet users. The
relevant provisions of the Directives, which to a certain extent set out the
limits of what can and cannot be done, are presented below.
2.3.1 Copyright in the Information society:

InfoSoc Directive 2001/29
The InfoSoc Directive concerns the legal protection of copyright and related
rights in the framework of the internal market, with particular emphasis on
the information society. 56 The Directive introduces the “making available”
right, harmonises the reproduction and distribution rights, and defines when
exceptions can be made from those rights: 57
According to Article 2 of the InfoSoc Directive, Member States shall

provide for the “exclusive right to authorise or prohibit direct or indirect,
temporary or permanent reproduction by any means and in any form, in
whole or in part “for authors, of their works. Member States are also obliged
to provide authors with the “exclusive right to authorise or prohibit any
communication to the public of their works, […] 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“. 58 These two articles define the substance of copyright: any violation
of the exclusive rights, for instance, unauthorised sharing of copyrighted
material, is considered a copyright infringement, unless the use falls within
the exceptions allowed under Article 5.
Member States may provide for such exceptions or limitations 59, i.a. in
respect of reproductions made by a natural person for private use and for
ends that are neither directly nor indirectly commercial, provided that the
right holders receive fair compensation which takes account of the
application or non-application of effective technological measures further
defined in Article 6. Such limitations shall only be applied in certain special
cases that do not conflict with a normal exploitation of the work or other
subject matter and do not unreasonably prejudice the legitimate interests of
the right holder. 60 It is however undisputable that sharing a copy online with
55
perspectives”, CMLRev., p.873
56
Art.1 InfoSoc Directive
57
L. BENTLY & B. SHERMAN: Intellectual Property Law, p. 53
58
Art. 3(1) InfoSoc Directive
59
Protection in a Comparative Analysis, p.57
60
Art. 5(5) InfoSoc Directive
17
thousands of strangers cannot constitute “normal exploitation” and does not
fall within this exception; file sharers can therefore be held liable for
copyright infringement. 61
Pursuant to Article 8, Member States shall provide “appropriate sanctions

and remedies in respect of infringements of the rights and obligations set out
in this Directive“ and take “all the measures necessary to ensure that those
sanctions and remedies are applied“. The sanctions have to be effective,
proportionate and dissuasive. Article 8 includes the obligation to ensure that
right holders are in a position to apply for an injunction against
intermediaries whose services are used by a third party to infringe a
copyright or related right. Guidelines for measures, procedures and remedies
necessary to ensure the enforcement of intellectual property rights are
further defined in IPRED. 62 Some commentators have argued that IPRED
goes beyond the TRIPS rules on enforcement. 63
2.3.2 Enforcement of copyright: IPRED

Directive 2004/48
Pursuant to Article 3 of IPRED, the measures, procedures and remedies
shall be “fair and equitable “and not “unnecessarily complicated or costly“,
or “entail unreasonable time-limits or unwarranted delays“. They shall also
be effective, proportionate and dissuasive and “applied in such a manner as
to avoid the creation of barriers to legitimate trade and to provide for
safeguards against their abuse“. As will be seen in Part II, “not
unnecessarily complicated or costly” is an especially important requirement,
connected to i.a. the intermediaries’ freedom to conduct a business; a
measure which otherwise might ensure a fair balance cannot be adopted if it
entails an unreasonable burden on the intermediaries.
Article 8 creates the obligation to ensure that information about the

infringement may be provided in the context of infringement proceedings
and in response to a justified and proportionate request of the right holder,
but the eventual disclosure is limited by i.a. rules on protection of private
data. 64 IPRED shall further not affect the EU provisions governing i.a. the
substantive law on intellectual property, Directive 95/46/EC, or the E-
commerce Directive 2000/31/EC, especially Articles 12 to 15. 65
61
E. WERKERS & F. COUDERT: “The Fight Against Piracy in Peer-to-Peer Networks:
the Sword of Damocles Hanging over ISP’s Head?“, p.340
62
Art.1, 3 IPRED
63
64
Art. 8(3) IPRED
65
Art. 2(3) IPRED
18
2.3.3 The role of the intermediaries: E-
commerce Directive 2000/31
The E-commerce Directive aims to “contribute to the proper functioning of
the internal market by ensuring the free movement of information society
services between the Member States.” 66 The Directive approximates certain
national provisions on information society services relating i.a. to the
responsibilities of the intermediaries.
Pursuant to Article 15, Member States shall not impose a general obligation
on providers, when providing the services of “mere conduit“, “caching“ and
hosting, to monitor the information which they transmit or store, nor a
general obligation actively to seek facts or circumstances indicating illegal
activity. However, according to the second part of Article 15, Member
States may establish obligations for information society service providers to
inform the competent public authorities of i.a. “alleged illegal activities
undertaken or information provided by recipients of their service“ 67.
Member States may also establish obligations to communicate to the
competent authorities, at their request, “information enabling the
identification of recipients of their service with whom they have storage
agreements“.
Article 18 provides an obligation for the Member States to ensure that

national law allows for the “rapid adoption of measures, including interim
measures, designed to terminate any alleged infringement and to prevent
any further impairment of the interests involved.“
These provisions may seem clear in theory but are not easily applicable in
practice; while general monitoring is prohibited, it is far from clear what can
be classified as such general monitoring. Furthermore, a significant amount
of infringing activities might slip through if the intermediaries, being
obliged to inform about alleged infringements, are not allowed to actively
check the content to actually establish the infringement. Finally, even if
infringement has been established, the disclosure of personal details has to
respect certain limitations stated in data protection Directives.
2.3.4 The Internet users: Personal Data

Protection Directive 95/46/EC
The Personal Data Protection Directive applies to the “processing of
personal data wholly or partly by automatic means, and to the processing
otherwise than by automatic means of personal data which form part of a
filing system or are intended to form part of a filing system.“ 68 Together
with the E-privacy Directive 2002/58, this Directive defines what data can
66
Art. 1 of Directive 2000/31/EC (“E-commerce Directive”)
67
Art. 15(2) E-commerce Directive
68
Art. 3 Directive 95/46/EC (“Personal Data Protection Directive”)
19
be processed and when exemptions can be made from the general
obligations concerning personal data protection.
For the purposes of the personal data protection directive, “personal data” is
defined as any information relating to an identified or identifiable natural
person (“data subject”). “Processing of personal data” means any operation
performed upon personal data, such as i.a. collection, recording, retrieval,
disclosure by transmission, dissemination or otherwise making available. 69
Pursuant to Article 7 of the Directive, Member States shall i.a. provide that
personal data may be processed if such processing is “necessary for the
purposes of the legitimate interests pursued by the controller or by the third
party or parties to whom the data are disclosed”. However, such interests
can be overridden by the interests or fundamental rights and freedoms of the
data subject which require protection under Article 1(1).
According to Article 13(g) of the Directive, Member States may adopt

legislative measures to restrict the scope of the obligations when such a
restriction constitutes a necessary measure to safeguard i.a. the protection of
the data subject or of the rights and freedoms of others. The Personal Data
Protection Directive is complemented by the E-privacy Directive 2002/58.
70
2.3.5 E-privacy Directive 2002/58/EC

The Directive applies to the processing of personal data in connection with
the provision of publicly available electronic communications services in
public communications networks in the EU 71 and harmonises the processing
of personal data in the electronic communication sector.
Under Article 2 of the E-privacy Directive, “traffic data” means any data
processed for the purpose of the conveyance of a communication on an
electronic communications network or for the billing thereof.
“Communication” is any information exchanged or conveyed between a
finite number of parties by means of a publicly available electronic
communications service, generally excluding information conveyed as a
part of a broadcasting service to the public over an electronic
communications network, except to the extent that the information can be
related to the identifiable subscriber or user receiving the information.
Pursuant to Article 5 of the Directive, Member States shall ensure the

confidentiality of communications and the related traffic data by means of a
public communications network and publicly available electronic
communications services, through national legislation. In particular, this
entails the obligation to prohibit listening, tapping, storage or other kinds of
interception or surveillance of communications and the related traffic data
69
Art. 2 Personal Data Protection Directive
70
Art. 1 Directive 2002/58/EC (“E-privacy Directive“)
71
Art. 3 E-privacy Directive
20
by persons other than users, without the consent of the users concerned,
except when legally authorised to do so in accordance with Article 15(1).
However, Article 5 does not prevent technical storage necessary for the
conveyance of a communication without prejudice to the principle of
confidentiality.
Article 6 provides that traffic data relating to subscribers and users

processed and stored by the provider of a public communications network or
publicly available electronic communications service must generally be
erased or made anonymous when it is no longer needed for the purpose of
the transmission of a communication; however, there are some exceptions,
for instance, Article 15(1). According to the wording of Article 15, Member
States restrict the scope of some of the rights and obligations stated in the
Directive and adopt legislative measures providing for the retention of data
for a limited period justified on certain grounds. The restriction must be
“necessary, appropriate and proportionate measure within a democratic
society to safeguard national security, defence, public security, and the
prevention, investigation, detection and prosecution of criminal offences or
of unauthorised use of the electronic communication system“ 72 and has to
respect the general principles of EU law. The scope of Article 15 was further
clarified by the Court in the Promusicae 73 case.
2.3.6 Practical use

The secondary legislation contains detailed mechanisms for copyright
enforcement and for the protection of the rights of the Internet users and the
intermediaries. Indeed, it seems that everything has been covered by the
Directives and that there are no legal gaps. In a way, it is true; the Directives
can be seen as a puzzle, which, when put together, ensures effective
enforcement of copyright and helps fight infringements in the digital
environment without undermining the rights of the users. In an ideal
situation, the intermediaries would help the copyright holders spot all the
infringements made using their Internet service, and the infringers could be
identified and punished while not affecting the rights of the users that have
not done anything illegal. A fair balance would struck. However, as Billy
Idol sang in one of his greatest hits, “there is nothin' fair in this world”.74
Even when it comes to copyright enforcement under EU law.
72
Art. 15 of the E-privacy Directive explicitly refers to Art. 13(1) of Directive 95/46/EC
73
Case C-275/06 Promusicae,
74
Billy Idol, song “White Wedding” from the album “Billy Idol”, released October 23,
1982
21
3 Part II: case law
There is an ongoing war against piracy, and it has been provoked by the
Internet. The technological development has unleashed a monster; peer-to-
peer being one of the most efficient technologies to share files, copyrighted
material can be shared “in a way unimagined a generation ago.” 75 We live in
a world where our taste in music is no longer dependant on what is played
on the radio; in a world where TV programmes or cinema schedules do not
need to determine what movie we will watch tonight. Countless songs and
movies are just a few clicks away, without any additional costs, other than
the normal price paid for the actual access to the Internet and the costs for
normal maintenance of the computer. But what is the real price of “free”?
The answer depends on whose rights will weigh more in the balancing test;
in other words, it depends on the value assigned to the rights of the Internet
users and the intermediaries, and the value given to the exclusive rights of
the copyright holders. If the rights of the copyright holders can be enforced,
the entertainment is not as “free” as it may seem; the infringer can end up
paying a significant amount in damages. For the past few years, copyright
holders have been very active and have brought legal actions against
developers of peer-to-peer network software such as Napster, Grokster,
Kazaa, and Bittorent. 76 Those actions are not only directed at the owners of
such software; the copyright holders have also started chasing the alleged
infringers. However, it is difficult to efficiently prosecute the users: in a p2p
network, computers operate as both client and server, 77 and copyright
holders often have to rely on other parties, such as the intermediaries, to get
access to the infringers. 78 Since the legal actions do not tend to lead to a
substantial decrease of illegal downloads, the copyright holders would
prefer a set of preventive measures, applied by the intermediaries, such as
filtering communications and blacklisting certain users. 79 Such preventive
schemes sound desirable with regard to effective protection of copyright;
yet, they are not very realistic, as will be seen in the following few chapters.
The recent development of case law has shown that in choosing whether to
provide for disclosure of information in the context of copyright
infringement proceedings, the Member States are “free to balance the
various fundamental rights involved and to choose different solutions, on
75
L. LESSIG: Free culture, Chapter “piracy” http://www.authorama.com/free-culture-
3.html (2012-05-07)
76
E. WERKERS & F. COUDERT: “The Fight Against Piracy in Peer-to-Peer Networks: the
Sword of Damocles Hanging over ISP’s Head?“, p.339
77
78
Ibid., p.76
79
E. WERKERS & F. COUDERT: “The Fight Against Piracy in Peer-to-Peer Networks: the
Sword of Damocles Hanging over ISP’s Head?“, p.339
22
condition that such balancing process is fair and in compliance with the
general principles of [Union] law” 80.
In practice, if the Member State finds that the need to protect the rights of
the Internet users prevails, enforcement becomes complicated. Furthermore,
if the only way to effectively prevent file sharing entails an unreasonable
burden on the intermediaries, the measure will not be adopted and the
infringements will continue unless specifically fought by the copyright
holder. It might sound cynical, but in reality, a “fair balance” does not
necessarily lead to a fair outcome.
Recent case law development, starting with the Promusicae 81 case, decided
in the beginning of 2008, illustrates the problematic reality very well. Even
though the balancing approach had been used by the Court on various
occasions, 82 both to reconcile the fundamental rights with the fundamental
freedoms and to solve clashes of various fundamental rights, the
Promusicae case is the first case that deals with the need to balance
intellectual property rights with other fundamental rights in situations of
enforcement. Cases such as Scarlet Extended, SABAM v. Netlog, and, most
recently, Bonnier, demonstrate the most common practical concerns
regarding the copyright infringements in the digital environment. What
measures can or cannot be taken in order to effectively fight unauthorised
file sharing? The next few chapters contain summaries of cases that
somewhat clarify when and against whom measures can be taken, but also
narrow down the range of acceptable measures.
3.1 Promusicae: a (not so solid?) ground

for future judgements
3.1.1 Facts
Promusicae 83 was a non-profit organisation of producers and publishers of
musical and audiovisual recordings. In 2005, Promusicae found out that
some people had been using Kazaa 84 p2p file exchange program to share
music files to which held exploitation rights. It then lodged an application to
the national court 85 to order the Internet service provider (ISP) Telefónica86
to disclose the identities and physical addresses of those persons. 87
80
perspectives”, CMLRev., p.873
81
Case C-275/06 Promusicae
82
Case C-112/00 Schmidberger, para.77; Case C-36/02 Omega Spielhallen, para 36; Case
C-341/05 Laval, para 94; Case C-101/01 Lindqvist, para.82
83
Productores de Música de España
84
Once stylised as "KaZaA", but now usually written "Kazaa”,
http://en.wikipedia.org/wiki/Kazaa (2012-03-26)
85
Juzgado de lo Mercantil No 5 de Madrid
86
Telefónica de España SAU
87
Case C-275/06 Promusicae, paras.29-32
23
In December 2005, the national court ordered the requested preliminary
measures. Telefónica appealed against that order, claiming that under
national law 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, and not in the context of
civil proceedings or as a preliminary measure relating to civil proceedings.
3.1.2 Issues
Promusicae argued that the relevant national provision had to be interpreted
in accordance with various provisions of the E-commerce Directive, the
InfoSoc Directive, IPRED. The main issue was whether the relevant
secondary legislation, read in the light of Articles 17 and 47 of the Charter,
obliged the Member States to lay down an obligation for ISPs to
communicate personal data in the context of civil proceedings in order to
ensure effective protection of copyright. 88
It is worthwhile mentioning that by virtue of the original question referred

by the national court, there were no hints that the case would turn out to be
one of the most important cases in the area of intellectual property law, but
also in the area of intellectual property law. The “twist” was added by the
Court of Justice, when it reformulated the question to provide the national
court with all the elements of interpretation of [Union] law which may be
useful for deciding the case. 89 The original question concerned the
interpretation of Directives 2000/31, 2001/29 and 2004/48 and the Articles
17 and 47 of the Charter. However, the national legislation at stake was
intended to implement the rules for the protection of personal data, also
required under Directives 95/46 and 2002/58.
The communication of information stored by Telefónica constituted the

processing of personal data within the meaning of Article 2 of Directive
2002/58 and Article 2(b) of Directive 95/46. Therefore, it fell within the
scope of Directive 2002/58, even though the compliance of the data storage
itself with the requirements of that directive was not at issue in the main
proceedings. 90 What is the catch? Well, since the E-privacy Directive
2002/58 concerns protection of personal data, which is a fundamental right
protection under Article 8 of the Charter, by adding it to the question, the
Court defined a clash of fundamental rights that had not explicitly been
mentioned in the original dispute.
3.1.3 Findings of the Court

3.1.3.1 Freedom of choice for the Member States…
The Court reaffirmed that none of the exceptions explicitly stated in Article
15(1) of Directive relate to situations that may give rise to civil
88
Case C-275/06 Promusicae, paras.34, 41.
89
Ibid., para. 42
90
Ibid., para.45
24
proceedings. 91 Nevertheless, the Court also pointed out that Article 15(1) of
Directive 2002/58 ends the list of the above exceptions with an express
reference to Article 13(1) of Directive 95/46. This provision allows the
Member States to adopt legislative measures to restrict the obligation of
confidentiality of personal data where that restriction is necessary i.a. for the
protection of the rights and freedoms of others.
Article 13(1) of Directive 95/46 does not specify the rights and freedoms
concerned. However, the Court stated that Article 15(1) of Directive
2002/58 has to be interpreted as “expressing the [Union] legislature’s
intention not to exclude from their scope the protection of the right to
property or situations in which authors seek to obtain that protection in civil
proceedings.“ 92 Therefore, the Court interpreted Directive 2002/58 as not
precluding the possibility for the Member States of laying down an
obligation to disclose personal data in the context of civil proceedings.
However, it also explained that laying down such an obligation is not
mandatory under the Directive. 93
In relation to the three other Directives (2004/48, 2000/31, 2001/29) referred

to by the national court, the Court of Justice found that the wording of
neither of the Directives can be interpreted as requiring the Member States
to lay down an obligation for the ISPs to disclose personal data in the
context of civil proceedings. 94 The Court also stated that no such obligation
exists under the TRIPS agreement, even though Articles 41, 42 and 47
TRIPS require the effective protection of intellectual property rights and the
institution of judicial remedies for their enforcement. 95
To sum up, the Court found that the Member States may, but are not obliged
to, provide for disclosure of personal data in civil proceedings regarding
enforcement of intellectual property rights.
3.1.3.2 …limited by the Charter
Having provided the national court with an interpretation of the Directives,
the Court of Justice went on and examined the relevance of fundamental
rights in order to make sure whether other rules of [Union] law might
require a different reading of the directives. 96 It is indeed this second part of
the case that makes Promusicae a truly “principled ruling”.
Since the provisions in the Directives at issue are relatively general, they
logically include rules that leave the Member States with the necessary
discretion to define transposition measures that may be adapted to the
91
Ibid., para.51
92
Ibid., para.53
93
Ibid., para.55
94
Ibid., paras.57-59
95
Ibid., para.60; Joined Cases C-300/98 and C-392/98 Dior and Others, para. 47; Case C-
431/05 Merck Genéricos - Produtos Farmacêuticos, para. 35
96
Case C-275/06 Promusicae para.46
25
various situations possible. 97 Therefore, the Court explained that the
Member States must, when implementing the directives at issue, rely on an
interpretation which “allows a fair balance to be struck between the various
fundamental rights protected by the [Union] legal order“. 98 Moreover, 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 [Union]
law, such as the principle of proportionality“. 99
In conclusion, even though the Member States enjoy discretion to decide

whether or not to create an obligation of disclosure of personal data in civil
proceedings, they always have to reconcile the rights involved when
transposing secondary legislation. The findings were confirmed in the LSG
v. Tele2 100 case (concerning a classical situation in which a collecting
society, LCG, sought disclosure of data from the ISP, Tele2). In the LSG v.
Tele2 case, the Court deduced the answer from the Promusicae case.
However, it also clarified the notion of “intermediary”: access providers,
who merely enable clients to access the Internet, provide a service capable
of being used by a third party to infringe a copyright or related right,
inasmuch as those access providers supply the user with the connection
enabling him to infringe such rights. 101 The legal protection granted by the
InfoSoc Directive otherwise would be substantially diminished if
intermediaries, within the meaning of Article 8(3) of that directive, were to
be construed as not covering access providers, which alone are in possession
of the data making it possible to identify the users who have infringed those
rights. 102
The Promusicae case, confirmed in its “twin” case LSG v.Tele2, definitely
created a starting point for future case law concerning enforcement of
intellectual property right; however, the mere statement that a balance has to
be struck between the fundamental rights at stake does not give any
guidance as to what is meant by such balance. In other words, what we get
to know from those cases is that national possibilities are limited by the
Charter; some more practical implications regarding the values of the rights
in the balancing equation can be found in the SABAM cases.
97
Case C-275/06 Promusicae para.67, see also Case C-101/01 Lindqvist , para. 84.
98
Case C-275/06 Promusicae para.68. See also Case C-101/01 Lindqvist , para. 87, and
Case C-305/05 Ordre des barreaux francophones et germanophone and Others, para. 28.
99
Case C-275/06 Promusicae para.68. See also Case C-101/01 Lindqvist , para.87, and
Case C-305/05 Ordre des barreaux francophones et germanophone and Others, para.28.
100
Court order in case C-557/07 LSG v.Tele2, paras.23-28
101
Ibid., para.43
102
Ibid., para.45
26
3.1.4 Scarlet Extended v. SABAM: “NO” to
general monitoring
Scarlet Extended was the first case to deal with the practical side of the
balancing between intellectual property rights and other fundamental rights.
After having established that the national measure was likely to be
prohibited by Article 15 of the E-commerce Directive, the Court continued
and assessed the national measure in the light of the various fundamental
rights, which basically gives an overview of what values are likely to be
given to the rights in an actual balancing.
3.1.5 Facts
When SABAM found out that p2p networks were being used to share
copyrighted material from its catalogue, it got very upset. SABAM’s main
function was to represent authors, composers and editors of musical works
in authorising the use of their copyright-protected works by third parties.
The file sharing at issue had not been authorised by SABAM and no
royalties had been paid to it; therefore, SABAM brought interlocutory
proceedings against Scarlet, claiming that the Scarlet, as an ISP, was best
placed to take measures to end copyright infringements committed by its
customers. 103
In November 2004, the national court 104 ruled that copyright had been
infringed, and a couple of years later, Scarlet was ordered to bring to an end
those copyright infringements by blocking, or making it impossible for its
customers to share copyrighted music using p2p software without the
permission of the right holders. Scarlet appealed against that decision, 105
claiming that it was technically impossible to comply with the injunction. It
pointed out that the injunction would be contrary to national law
implementing Article 15 of Directive 2000/31, as it would impose a general
obligation to monitor all the EU provisions on the protection of personal
data and the secrecy of communications.
3.1.6 Issues
The injunction at stake would require the ISP to install a system for filtering
all electronic communications, both incoming and outgoing, passing via its
services, in particular those involving the use of p2p software. It would
apply indiscriminately to all its customers, in abstracto, as a preventive
measure, and be installed exclusively at the expense of the ISP and for an
unlimited period. The system would be used to identify the movement of
electronic files works in respect of which the applicant claims to hold
copyright, and subsequently to block the transfer of such files, either at the
point at which they are requested or at which they are sent. The main issue
103
Case C-70/10 Scarlet Extended paras.15-16
104
President of the Tribunal de première instance, Brussels
105
Case C-70/10 Scarlet Extended, paras.24-26.
27
was whether Directives 2001/29, 2004/48, 95/46, 2000/31 and 2002/58 had
to be interpreted as precluding a specific type of injunction imposed on an
ISP whose services are used by a third party to infringe copyright or related
right. 106

The Court stated that preventing further infringements is legitimate under
settled case-law, 107 however, rules for the operation of the injunctions must
observe the limitations arising from Directives 2001/29 and 2004/48 and
from the sources of law to which those directives refer. 108 However, even
though the right holders may apply for an injunction against intermediaries
whose services are being for copyright infringement, the Member States are
not entirely free to choose measures for copyright enforcement. Article
15(1) of Directive 2000/31 explicitly prohibits national authorities from
adopting measures that would require an ISP to carry out general monitoring
of the information that it transmits on its network. 109 The contested
injunction was found to be a general monitoring measure, prohibited by
Article 15(1) of the E-commerce Directive, 110 since it would require active
observation of all electronic communications and encompass all information
to be transmitted and all customers using the network.
In order to assess whether the injunction was consistent with EU law, the
Court also took into account the requirements stemming from the relevant
fundamental rights. 111 It referred to paragraphs 62 to 68 in the Promusicae
case and reaffirmed that the national authorities and courts must “strike a
fair balance between the protection of copyright and the protection of the
fundamental rights of individuals who are affected by such measures“. 112
The Court then looked at what effects the contested injunction would have
on the various fundamental rights. By identifying the actual impediment to
the various rights, the Court implied that a very restrictive measure for the
protection of one right could be accepted only if it did not cause undue harm
to other fundamental rights.
The contested injunction was found to lead to a serious infringement of the

ISP‘s freedom to conduct business, since the measure involved monitoring
all the electronic communications made through the network of the ISP, had
no limitation in time, was directed at all future infringements and intended
to protect not only existing works, but also future works. Another reason
why it impaired the freedom to conduct a business was that the ISP would
have to install this complex, expensive and permanent system at its own
106
Case C-70/10 Scarlet Extended para.28
107
Ibid., para.31; see also Case C-324/09 L‘Oréal and Others, para.131
108
Case C-70/10 Scarlet Extended paras.32-33
109
Ibid., para.35
110
Ibid., paras.39-40
111
Ibid., para.41
112
Ibid., paras. 43-45; see also Case C-275/06 Promusicae paras. 62-68
28
expense; this was also contrary to Article 3(1) of IPRED, which requires
that such measures should not be unnecessarily complicated or costly. 113
The Court also took into account the fundamental rights of the Internet
users, namely their right to protection of personal data and their freedom of
information, enshrined in Articles 8 and 11 ChFR, respectively. 114 Since the
IP addresses allow the users to be identified, they are protected as personal
data. 115 The contested filtering system would impair their right to personal
data protection, as it would require a systematic analysis of all data traffic
and an identification of IP addresses of users that had been engaging in
unlawful file sharing. Furthermore, the contested filtering system would
negatively affect the users’ freedom of information: it might not make an
adequate distinction between lawful and unlawful content, which could lead
to the blocking of lawful communications, especially considering the fact
that the lawfulness of the transmissions tends to vary between Member
States. 116
In sum, the Court found that in adopting the contested injunction the
referring court would not respect the requirement to strike a fair balance
between fundamental rights: the right to intellectual property, on the one
hand, and the freedom to conduct business, the right to protection of
personal data and the freedom to receive or impart information, on the
other. 117 To put it bluntly, the contested measure was so harmful to the other
fundamental rights that it could not possibly be accepted as a means to
protect copyright.
The Scarlet Extended case is a great example of what problems can arise
when selecting measures for copyright enforcement at the national level. It
does not clearly indicate what measures would be permitted, but it definitely
narrows down the range of alternatives by exemplifying a measure which
fails to strike a fair balance.
3.2 SABAM v. Netlog: the sequel

SABAM v. Netlog could be called “the twin case” of Scarlet Extended. The
facts are very similar; however, in SABAM v. Netlog, the injunction to stop
unauthorised file sharing was to be taken against a website.
3.2.1 Facts
SABAM 118 claimed that the musical and audio-visual works in its repertoire
had been unlawfully shared using a social networking platform called
113
Case C-70/10 Scarlet Extended para.48
114
Ibid., para.50
115
Ibid., para.51
116
Ibid., para.52
117
Ibid., para.53
118
The same management company representing authors, composers and publishers of
musical works as in Case C-70/10 Scarlet Extended
29
Netlog. 119 On Netlog’s website, users could build virtual communities and
have an own profile; 120 SABAM’s main claim was that Netlog also offered
all users the opportunity to share copyrighted material by means of their
profile. Since the use had not been authorised, SABAM had Netlog
summoned before a national court 121 in injunction proceedings, requesting
i.a. that Netlog be ordered to cease unlawfully making available the works
in question. 122
3.2.2 Issues
The contested injunction required the hosting service provider to install, as a
preventative measure, a system for filtering information stored on its servers
by its service users. In order to prevent copyright infringement, the
contested filtering system would identify electronic files containing works
in respect of which SABAM claims to hold intellectual property rights. The
system would apply indiscriminately to all users and have to be installed for
an unlimited period exclusively the hosting service provider‘s expense. The
main issue was whether EU law precluded the contested injunction, either
directly by means of secondary legislation, or as a measure that failed to
strike a fair balance between the relevant fundamental rights.

The Court found that the contested injunction imposed on the hosting
service provider would oblige it to actively monitor almost all the data in
order to prevent any future infringement of copyright, and therefore fall
within the definition of general monitoring prohibited by Article 15(1) of
the E-commerce Directive. 123 The Court also took into account the
requirements stemming from the protection of the applicable fundamental
rights and reaffirmed the need to strike a fair balance on the national
level. 124
The Court found that contested injunction would result in a serious

infringement of the freedom of the hosting service provider to conduct its
business. 125 Furthermore, it pointed out that the effects of that injunction
would not be limited to the hosting service provider, as the contested
filtering system may also infringe the fundamental rights of that hosting
service provider’s service users, namely their right to protection of their
personal data and their freedom to receive or impart information. 126 The
contested filtering system would involve the identification, systematic
analysis and processing of protected personal data because, in principle,
119
Case C-360/10 SABAM v. Netlog para.18
120
Ibid., paras. 16-17
121
President of the rechtbank van eerste aanleg te Brussel
122
Case C-360/10 SABAM v. Netlog para.19-21
123
Ibid., para.38
124
Ibid., para.43
125
Ibid., paras.44-46
126
Case C-360/10 SABAM v. Netlog paras.48-51
30
would allow those users to be identified. The injunction could also
potentially undermine freedom of information, since that system might not
distinguish adequately between unlawful content and lawful content.
Therefore, as the measure failed to strike a fair balance between the rights
involved, it was precluded by EU law. 127
The findings in SABAM v. Netlog were very similar to those in Scarlet

Extended. Nevertheless, SABAM v. Netlog contributes to the development of
case law because it clarifies what measures are not acceptable in relation to
hosting service providers.
As will be seen in the next chapter, balancing of intellectual property rights

and other fundamental rights does not always lead to the preclusion of a
national measure. In its subsequent case law, the Court has indicated what
measures are likely to strike a fair balance. However, most importantly, it
has shown that the balancing does not always lead to an unfair outcome.
3.3 Bonnier: the combo breaker

Bonnier, delivered on 19 April 2012, is a true combo breaker; it concerns a
measure that has successfully struck an actual fair balance. Nevertheless,
firstly, the contested measure was not purely preventive, as it was to be used
in order to facilitate the investigation of past infringements. Secondly, it is
highly doubtful whether the measure in the Bonnier case sets the limits of
what can be acceptable: it remains unclear what the most effective and yet
still acceptable measure could be, as well as what preventive measures could
be permitted.
3.3.1 Facts
The applicants in the main proceedings are publishing companies that hold
i.a. exclusive rights to the reproduction, publishing and distribution to the
public of 27 audio books. The copyright of those books was allegedly
infringed when the books were shared on an ftp server using Internet service
provided by ePhone. 128 The main proceedings, which started at Solna
District Court 129 and continued at the Stockholm Court of Appeal 130 and
Högsta Domstolen, concerned injunction issued against the ePhone ordering
it to disclose the personal data of the user of the IP address.
3.3.2 Issues
Even though the issues concern enforcement of copyright, the questions
referred from the national court are significantly different from those in the
SABAM cases as they essentially concerned the applicability of the Data
127
Ibid., para.51
128
Case C-461/10 Bonnier paras.25-33
129
Solna tingsrätten
130
Svea hovrätten
31
retention Directive. However, the Court eliminated the possibility of using
the Data retention Directive in cases of enforcement of copyright, since the
Data retention Directive deals exclusively with the handling and retention of
data generated or processed for the purpose of the investigation, detection
and prosecution of serious crime and their communication to the competent
national authorities. 131 The national legislation at issue, based on Article 8
of IPRED, did not fall within the material scope of Directive 2006/24 as it
concerned the communication of data, in civil proceedings, in order to
obtain a declaration that there has been an infringement of intellectual
property rights. 132
Interestingly, the CJEU interpreted the referring court‘s question as an

indication of doubt as to whether the national transposing measures were
likely to ensure a fair balance between the various applicable fundamental
rights. 133 Therefore, regardless of the fact that questions posed by the
national court only focused on the Data Retention Directive, Bonnier
continues the saga of cases concerning striking a fair balance.

Pursuant to national law, if the following conditions were fulfilled, an order
for disclosure of personal data to private persons in civil proceedings could
be made:
1) There had to be clear evidence of an infringement of an intellectual

property right.
2) The information had to be regarded as facilitating the investigation into
an infringement of copyright or impairment of such a right.
3) The reasons for the measure had to outweigh the nuisance or other harm
which the measure may entail for the person affected by it or for some other
conflicting interest. 134
The Court stated that the national legislation at issue was likely, in principle,
to ensure a fair balance between the protection of intellectual property rights
enjoyed by copyright holders and the protection of personal data enjoyed by
internet subscribers or users. This was based on the fact that the legislation
enabled the national court to weigh the conflicting interests involved, on the
basis of the facts of each case and taking due account of the requirements of
the principle of proportionality. 135
Nevertheless, even though the Bonnier case provides an example of a

measure that is likely to strike a fair balance, the puzzle is not complete.
Knowing how to deal with past infringements is certainly useful, but it is of
little help when it comes to preventing infringements from happening. Thus,
131
Case C-461/10 Bonnier, paras.40, 43
132
Ibid., paras.44, 45
133
Ibid., para.49
134
Ibid., para.58
135
Ibid., paras.59-60
32
it remains to be discussed whether preventive measures could be accepted
and whether, given the maximum values to the rights involved, a fair
balance can be struck. In more practical terms, file sharing is detrimental to
the copyright holders, but can anything be done about it when the need to
protect the other rights is just as high?
In the next part of this thesis (Part III), the technicalities of balancing are
presented and the scope of the various rights is explored to see what values
could possibly fit in the balancing equation.
33
4 Part III: balancing – the
pieces
As shown in Part II, the outcome in each case depends on the specific
features of the measure at stake, especially on how much that measure
impairs the various rights involved. For instance, general monitoring
measures prejudice the service provider’s freedom to conduct a business,
but also jeopardise the right to protection of personal data and the freedom
of information of the Internet users. The harm that such general measures
cause to the “other fundamental rights” is so severe that it cannot be
justified by the need to protect copyright. By contrast, measures that allow a
case-by-case assessment when an infringement of intellectual property
rights has been established, are not likely to be precluded by EU law.
In the next few chapters, the theory of balancing is presented. That

presentation is followed by a brief discussion of case law concerning the
substance of each right in order to establish when the rights can or cannot be
restricted in order to protect other rights. This is crucial in order to create a
solid ground for the analysis in Part IV, where the practical possibilities of
striking a fair balance will be discussed.
4.1 The theory of balancing

Promusicae is a “principled ruling”; it was reasoned in terms of principles
and weighing. 136 In a way, there is nothing revolutionary about the
Promusicae case: it consistent with older case law, stating that Member
States have to respect fundamental rights when implementing Union law.137
Reconciliation of contradictory values is also evident in earlier cases such as
Schmidberger, Omega and Laval. 138 The essence of the balancing approach
is especially clear in the Lindqvist case 139, where the Court did not only
emphasise the need to balance the rights and interests involved, but also
explicitly referred to the national discretion: “[t]hus, it is, rather, at the stage
of the application at national level of the legislation implementing Directive
95/46 in individual cases that a balance must be found between the rights
and interests involved.“ 140
However, what makes the Promusicae line of case law special is that it
demonstrates how complex it is to transpose secondary legislation in a way
136
X. GROUSSOT, “Rock the KaZaA: Another Clash of Fundamental Rights”, CMLRev.,
p.1757
137
Case 5/88 Wachauf, [1989] ECR 2609.
138
p.1761. Case C-112/00 Schmidberger para.77; Case C-36/02 Omega Spielhallen para. 36,
Case C-341/05 Laval para.94
139
Case C-101/01, Lindqvist, [2003] ECR I-12971, paras.80-85
140
Ibid., para.85
34
that ensures adequate protection for all the interests in the information
society; especially when those interests are also fundamental rights.
Constitutional rights – and this is the case of fundamental rights, since they
enjoy the same legal value as the Treaties 141 – are treated as “norms
requiring that something be realised to the greatest extent possible, given the
factual and legal possibilities.” 142 In other words, the fundamental rights are
treated as optimisation requirements and thereby as principles, not simply as
rules. Weighing fundamental rights against each other means applying the
“Law of Balancing” in practice. It may seem quite uncomplicated but is
hard to achieve in practice, hence the case law development: “[se]ducing as
it may seem, balancing may be closer to a slogan than to a methodology.” 143
Balancing is a part of the principle of proportionality144; the principle of

proportionality is divided into 1) suitability, 2) necessity and 3)
proportionality in the narrow sense. This proportionality stricto sensu
constitutes the Law of Balancing. 145 While suitability and necessity concern
optimisation relative to what is factually possible and express the idea of
Pareto-optimality, proportionality stricto sensu concerns optimisation
relative to the legal possibilities (defined by competing principles), and can
be summarised as follows:
“The greater the degree of non-satisfaction of, or detriment to, one principle,
the greater the importance of satisfying the other.” 146
The actual balancing consists of three steps:

1) establishing the degree of non-satisfaction, or of detriment to a first
principle;
2) establishing the importance of satisfying the competing principle;
3) establishing whether the importance of satisfying the latter principle
justifies the detriment to or non-satisfaction of the former. 147
𝐼𝑖
Balancing can be expressed as a Weight formula 148 𝑊 = 𝐼𝑗, where Ii is the
intensity of interference with the first principle (Pi), and Ij is the importance
of satisfying the competing principle (Pj). The intensity/importance can be
defined as light, moderate, or serious, and if numeric values are assigned to
the intensity/importance, the balance can be calculated. For example, on the
basis of the geometric sequence 20, 21, and 22, that is, 1, 2, and 4, “light”
would get the value 1, “moderate” the value 2, and “serious” the value 4.
141
Art.6(1)TEU
142
R. ALEXY: “Balancing, constitutional review, and representation“, p.572-573
143
p.1760
144
For proportionality, see X.GROUSSOT: General Principles of Community Law, p. 150ff
145
R. ALEXY: “Balancing, constitutional review, and representation“,p.572
146
Ibid., p.573
147
X. GROUSSOT: “Rock the KaZaA: Another Clash of Fundamental Rights”, CMLRev.,
p.1760; R. ALEXY: “Balancing, constitutional review, and representation“, pp. 572-574
148
R.ALEXY: “Balancing, constitutional review, and representation“, p. 575
35
Consequently, if the intensity of infringement of one right is serious (Ii=4),
and the importance of satisfying the other right is only moderate (Ij=2), the
𝐼𝑖 4
concrete value of weight would be 𝐼𝑗 = 2 = 2. Pi prevails if the concrete
weight is greater than 1; Pj prevails if the concrete weight is less than 1. 149
Weighing of values leads to a judgment but is not able to justify the
outcome. 150 The results of using the Weight Formula therefore have to be
justified by means of further arguments; the Weight Formula itself is a form
of argument. 151
However, balancing is not a mechanical process and it is hard to apply the

Weight Formula in cases where more than two principles conflict with each
other, especially considering that there are no standards as to what is fair or
not. Judges enjoy discretion and the rights involved may not always appear
to be equal to the judge, regardless of their legal status; a breach might seem
moderate to one judge but serious to another. Therefore, the outcomes are as
much dependant on the factual circumstances, as on pure subjectivity.
Partly because more than two rights are involved and partly because it is not
realistic to agree on the boundaries between light and moderate/ moderate
and serious damage, I will not rely on the mathematical expression of the
Weight formula in my discussion. Since all fundamental rights recognised in
the Charter enjoy a constitutional status, they are equally protected. The
“Law of Balancing” entails a contextualised evaluation dependant on the
particular circumstances of the case. According to settled case law of the
European Court of Human Rights, the state is given a wide margin of
discretion in cases of conflict between two fundamental rights. 152 This wide
margin of discretion is also evident in case law of the CJEU.153
(Nevertheless, it cannot be forgotten that in the field of intellectual property
law, the EU has to a certain extent exercised competence, and “[i]n those
circumstances, the Member States are no longer competent to adopt
provisions compromising that European Union legislation.” 154)
Fundamental rights are not absolute rights; they must be considered in

relation to their social function. 155 However, pursuant to Article 52(1) of the
Charter, any limitation on the exercise of the rights and freedoms recognised
by the Charter must be provided for by law and respect the essence of those
rights and freedoms.
149
R.ALEXY: “Balancing, constitutional review, and representation“, p. 576
150
Ibid., p. 573
151
Ibid., p. 575
152
X. GROUSSOT: “Another clash of fundamental rights”, CMLRev., p. 1762; ECtHR Case
Chassagnou v. France
153
Case C-112/00 Schmidberger , para.93; Case C-36/02 Omega Spielhallen, para. 37
154
Case C-277/10 Martin Luksan v. Petrus van der Let para.64
155
Case 5/88 Wachauf , para. 18; C-280/93 Germany v. Council, para.78
36
Complete reconciliation is not always possible in situations of total
conflicts. 156 As Advocate General Sharpston pointed out in her opinion in
the Varec case, paragraph 48, “interests should obviously be reconciled,
although it will not always be feasible to reconcile them fully. In particular,
it will in some cases be necessary to restrict one party’s right [...] in order to
ensure that the very substance or essence of the other party’s right [...] is not
impaired. However, any restriction must not go beyond what is necessary
for that purpose, and a fair balance must be struck between the conflicting
rights.” 157 In other words, subject to the principle of proportionality,
limitations may be made only if they are necessary and genuinely meet
objectives of general interest recognised by the Union or the need to protect
the rights and freedoms of others.
Therefore, instead of using the Weight formula, I prefer seeing balancing of

fundamental rights as an equation of inverse proportionality. For example,
the variable y is inversely proportional to the variable x if there exists a non-
𝑘
zero constant k, so that 𝑦 = 𝑥 . If x decreases, then y will increase, and vice
versa. 158 Even though law is not mathematics and legal equations cannot be
solved using a formula, for the purpose of illustration, I will express
fundamental rights by numerical values. Now, for the purpose of this
example, k=100, y is copyright and x is the right to protection of personal
data. Both x and y can be just any positive number. If no restrictions need to
be made to x, then x=y=10. However, as soon as the right to protection of
personal data is somewhat restricted (for example, personal data of the
infringer can be disclosed to facilitate further investigation, such as in the
Bonnier case), the value of x decreases, while y increases proportionately.
100
For example, if the new x=8, then 𝑦 = 8 = 12.5
The higher is the need to protect copyright, the more the right to protection
of personal data has to be restricted to protect copyright. The value of y
increases while the value of x decreases accordingly. However, as soon as
the restriction of the right to personal data protection impairs the very
substance of that right, x becomes equal to zero, and regardless of how high
the value of y might be, the equation cannot be solved:
”Division by zero must be left undefined in any mathematical system

that obeys the axioms of a field. The reason is that division is defined
to be the inverse operation of multiplication. This means that the value
of a/b is the solution x of the equation bx = a whenever such a value
exists and is unique. Otherwise the value is left undefined.” 159
156
X. GROUSSOT:“Rock the KaZaA: Another Clash of Fundamental Rights”, CMLRev., p.
1761
157
AG Sharpston in Case C-450/06 Varec, para.48
158
http://www.youtube.com/watch?v=swAs0v7u4Vk (2012-05-19)
159
http://en.wikipedia.org/wiki/Division_by_zero (2012-05-19)
37
Division by zero is an operation for which you cannot find an answer; 160 in
terms of fundamental rights, this means that if the very substance of
copyright can only be protected by impairing the very substance of another
right, a fair balance cannot be struck. Moreover, when the value of x gets
close to zero, the value of y increases towards infinity; in terms of
fundamental rights, this would mean that y enjoys absolute protection, and
according to the Charter and to settled case law, 161 the right to property is
not absolute.
It does not matter how many fundamental rights are involved; as soon as the
very substance of one of them is impaired in order to protect a right that is
not absolute, there will be no fair balance. The measures in the Scarlet
Extended and SABAM v. Netlog obviously attempted to divide by zero – the
general monitoring measures were likely to impair the substance of three
fundamental rights at once. A fair balance could not possibly be struck.
The aim of the following few chapters is to define the need to protect
copyright, and then to determine to what extent the other fundamental rights
can be restricted within the boundaries of a fair balancing.
4.2 The rights involved

4.2.1 Copyright
As a property right, copyright is protected under Article 17 of the Charter
and by the European Convention on Human Rights and Fundamental
Freedoms. (Compare Article 52(3) of the Charter: when rights guaranteed
by the Charter correspond to rights guaranteed by the ECHR, the meaning
and scope of those rights shall be the same, however, the EU may provide
for more extensive protection). 162
In order to assess the extent of the fundamental right to respect for property,
account is to be taken of, in particular, Article 1 of the First Additional
Protocol to the ECHR.163 Pursuant to Article 1 of Protocol 1 of the ECHR,
every natural or legal person is entitled to the peaceful enjoyment of his
possessions and no one shall be deprived of his possessions except in the
public interest and subject to the conditions provided for by law and by the
general principles of international law.
As stated above in Part II, pursuant to Article 2(a) of the InfoSoc Directive,
Member States have the obligation to provide for the exclusive right to
authorise or prohibit direct or indirect, temporary or permanent reproduction
160
http://mathforum.org/dr.math/faq/faq.divideby0.html (2012-05-19)
161
Case C-70/10 Scarlet Extended, para.43
162
Compare ECtHR Case Bosphorus v. Ireland
163
C. GEIGER: “Intellectual property shall be protected!? Article 17(2) of the Charter of
Fundamental Rights of the European Union: a mysterious provision with an unclear
scope”, E.I.P.R., p.117; ECtHR Case Balan v Moldova; Joined cases C-402/05 P & C-
415/05 P Kadi , para.356
38
by any means and in any form, in whole or in part, for authors, of their
works. The exclusive right to reproduce the protected work forms part of the
specific subject-matter of copyright. 164 The essential function of copyright is
to protect the moral rights in the work and to ensure a reward for creative
effort. 165 The specific subject matter is therefore not the same thing as the
essential function; however, the rights within the specific subject-matter are
indispensable to guarantee the copyright owner a sufficient reward for his or
her creative effort. 166 The Court has held on numerous occasions that the
exercise of exclusive rights is to be regarded as necessary even in very
specific circumstances in order to ensure the function of the intellectual
property right at issue. 167
4.2.1.1 Exceptions from the exclusive right

Pursuant to Article 5 of the InfoSoc Directive, the exclusive right of
reproduction can be subject to exceptions. One of the exceptions, stated in
Article 5(1) of the InfoSoc Directive, is for transient or incidental
reproductions. As was implied in the Infopaq case 168, “transient” has to be
interpreted strictly.
Another exception, one of immediate relevance for private users, is Article

5(2)(b) of the InfoSoc Directive, allowing reproductions on any medium
made by a natural person for private use and for ends that are neither
directly nor indirectly commercial. The exception is conditional; if the
Member States decide to introduce the private copying exception into their
national law, they are, in particular, required to provide for the payment of
“fair compensation” to right holders. 169
It is evident from the Preamble to the InfoSoc Directive and from settled
case law that a “fair balance” has to be maintained between the rights and
interests of the authors, on one hand, and those of the users of protected
works, on the other hand. 170 Article 5(5), in particular, makes the private
copying exception subject to three conditions: 1) it shall apply only in
certain special cases, 2) it shall not conflict with a normal exploitation of the
work; 3) it shall not unreasonably prejudice the legitimate interests of the
copyright holder. 171
When a person reproduces a protected work for private use without seeking
prior authorisation from the right holder, he or she causes harm to the right
holder and should financially compensate the right holder for the harm. 172
164
AG Gulmann in Joined cases C-241/91 P and C-242/91 P RTE and ITP, para.34
165
Ibid., para.37
166
Ibid., para.82
167
Case C-10/89 HAG GF, para. 16; Case 19/84 Pharmon v Hoechst, paras. 25-26
168
Case C-5/08 Infopaq
169
Case C-467/08 Padawan, para. 30; Case C-462/09 Stichting de Thuiskopie, para.22
170
Recital 31 of the Preamble to the InfoSoc Directive; Case C-467/08 Padawan, para. 43;
Case C-462/09 Stichting de Thuiskopie, para.25
171
Case C-462/09 Stichting de Thuiskopie, para.21
172
Case C-467/08 Padawan, para. 45; Case C-462/09 Stichting de Thuiskopie, para.26
39
However, given the practical difficulties in identifying private users and
obliging them to compensate right holders for the harm caused to them,
Member States may provide for a ‘private copying levy’ to ensure fair
compensation. Such levy would be chargeable not directly to the private
persons concerned but to those who, in law or in fact, make digital
reproduction equipment, devices and media equipment available to private
users or who provide copying services for them. 173
The system would allow the persons responsible for payment to pass on the
amount of the private copying levy in the price charged for reproduction
equipment or services, so that the burden of the levy would ultimately be
borne by the private user. Such a system would ensure a “fair balance”
between the interests of authors and those of the users of the protected
subject-matter. 174
In a world where private copying is directly connected to tangible media,

fair compensation is not a problem. In the Padawan case, for instance, the
company marketed CD-Rs, CD-RWs, DVD-Rs and MP3 players. 175 In the
Stichting de Thuiskopie case, the company also sold blank media. 176 Fair
compensation could in other words be ensured by making the companies
pay the private copying levy, which would ultimately be passed on the
consumers engaged in private copying. This, of course, requires the use of
tangible media for which the user is charged extra.
4.2.1.2 The impact of unauthorised file sharing
In a way, tangible media cannot be compared to the piracy of digital media;
for instance, if you steal a CD from a shop, the shop will have one less CD
to sell. However, if you take an album in the MP3 format from the Internet,
the album is still as available online as it was before you took a copy of it.
Moreover, while unauthorised sharing of digital media might lead to losses
for the record industry, but it does not lead to gains for the digital pirates.
Sure enough, the consumers “gain” the amount equal to the value of the
record if they take it for free instead of buying. However, the correlating
losses cannot be estimated by simply referring to the amount of shared
media; there is no guarantee that the consumers would actually have been
willing to buy the record. By contract, physical piracy is an actual business;
copyrighted material is taken and copied without permission of the right
holder, and then sold. One in three CDs sold worldwide is a pirated copy,
which leads to estimated losses of approximately $4.6 billion every year for
the record industry177 and to significant profit for the pirates. Therefore, the
“physics of piracy of the intangible are different from the physics of piracy
of the tangible”. 178
173
Case C-462/09 Stichting de Thuiskopie, para. 27; Case C-467/08 Padawan, para.46
174
Case C-462/09 Stichting de Thuiskopie, para. 28; Case C-467/08 Padawan, para. 48-49
175
Case C-467/08 Padawan , para.17
176
Case C-462/09 Stichting de Thuiskopie, para. 10
177
L. LESSIG: Free culture, Chapter 5, at http://www.authorama.com/free-culture-8.html,
(2012-05-13)
178
Ibid.
40
Nevertheless, when it comes to nature of the infringement, the differences
between tangible piracy and digital piracy vanish. All piracy is detrimental
to the very substance of copyright. Firstly, as explained above, unauthorised
private copying that does not lead to a fair compensation prejudices the
interests of the right holder. Secondly, under current legislation, even if the
copyright holder receives an adequate remuneration for the private use
online sharing of private copies cannot possibly be regarded as personal use
(and thus normal exploitation) of the work. 179
Making copies of copyrighted media and sharing the copied files online
cannot possibly be allowed under the private copying exception, even if the
persons that download the copies will later transfer them to their media
devices and thereby to a certain extent ensure a fair compensation to the
right holder. The exclusivity of the production right “certainly constitutes
the most effective form of protection, having regard in particular to the
development of new technologies and the increasing threat of piracy, which
is favoured by the extreme ease with which recordings can be copied.” 180
Such exclusivity is necessary to ensure proper remuneration; the lack of
proper remuneration would have “inevitable repercussions for the creation
of new works.” 181 Therefore, as online file sharing does not respect the
exclusive right of reproduction and distribution, it impairs the very
substance of copyright. This conclusion is also supported by the fact that the
rule of exhaustion does not apply to digital services. 182
Digital file sharing bears a striking resemblance to the situations in older

case law concerning video rentals. In Warner Bros 183, the Court reaffirmed
that the right to prohibit the hiring-out of a video-cassette was bound up
with the exclusive right of performance and the exclusive right of
reproduction, necessary in order to guarantee to makers of films a
satisfactory remuneration on the specific rental market which was held to be
distinct from the sales market. The Court specifically pointed out that the
size of the rental market, owing to developments in technology, offered
great potential as a source of revenue.
In Laserdisken, 184 the Court found that by authorising the collection of

royalties only on sales to private individuals and to persons hiring out video
cassettes, it was impossible to guarantee to makers of films a remuneration
that would reflect occasions on which the video cassettes were actually
hired out and which would secure them a satisfactory share on the rental
market. The release into circulation of a film could not render lawful other
acts of exploitation of the protected work, such as rental, by nature different
179
Compare ”fair use”: G. MAZZIOTTI: EU digital copyright law and the end-user, p. 140;
Case UMG Recordings, Inc. v. Mp3.Com, 92 Federal Supplement 2d 349, p.351 (S.D.N.Y.
2000)
180
Case C-200/96 Metronome Music, para.24
181
Ibid.
182
Recital 29 of the Preamble to the InfoSoc Directive
183
Case 158/86 Warner Brothers
184
Case C-61/97 Laserdisken
41
from sale or any other lawful act of distribution. The Court stated that rental
rights remained one of the prerogatives of the author and producer
notwithstanding sale of the physical recording, and that the specific right to
authorise or prohibit rental would be rendered meaningless if it were held to
be exhausted as soon as the object was first offered for rental.
The Internet can without a doubt be used as a source of revenue; file sharing
has therefore both legal and economical consequences. According to
statistic data, Internet users prefer downloading current alternative music.
Downloading of movies is also heavily concentrated on current releases. 185
Taking music as an example, while a low effective price of music leads to a
larger consumer interest and drive up the demand for live performances, at
the same time, concerts are a less effective way to increase revenues from a
new recording if the audience shares files. 186
In theory, the copyright holder enjoys the exclusive right to reproduction,

while in practice, unauthorised copies are so wide-spread that only a non-
significant part of the audience still willingly obtains copies from the right
holder. As the right holder cannot control how many copies are reproduced
and shared, the unauthorised sharing impairs the exclusive right of
reproduction to such an extent that the legitimate interests of the right holder
are prejudiced and the right holder is deprived of the substance of the
intellectual property right.
Member States have the obligation to provide for the measures, procedures
and remedies necessary to ensure the enforcement of the intellectual
property rights, 187 and to strike a fair balance between the rights involved
when implementing those measures. The main problem with copyright
enforcement is that even though file sharing impairs the very substance of
the right, measures that are too strict are not acceptable because they are
likely to undermine the rights of the Internet users and the intermediaries, as
seen in the SABAM cases. However, less strict measures might not be
sufficiently effective. For instance, the measure in the Bonnier case served a
particular purpose: “facilitating the investigation into an infringement of
copyright or impairment of such a right“. There, the reasons for the measure
outweighed the nuisance or other harm that the measure could entail for the
person affected by it or for some other conflicting interest. 188 Such a
measure, even though ensuring a fair balance when used for a particular
purpose, is completely limited to that purpose; it does not prevent the
infringements from happening but merely deals with the consequences. Of
course, it could be claimed that it scares off other file sharers; having
witnessed effective enforcement of copyright, they probably would not like
to experience it themselves. For instance, in Sweden, 52% of illegal file-
sharers said their activity had declined merely due to the law transposing the
185
F. OBERHOLZER & K. STRUMPF: “File Sharing and Copyright”, pp. 31-33
186
Ibid., p. 45
187
Article 3 of IPRED
188
Case C-461/10 Bonnier, para.58
42
IPRED. 189 However, this preventive effect might be incidental. Therefore,
it is especially important to find how to effectively prevent file sharing in a
way that affords a fair balance between the interests involved.
Fundamental rights, as mentioned above, have to be seen in relation to their

social purpose and can be restricted, provided that the restriction in fact
corresponds to objectives of general interest pursued by the Union and does
not constitute, with regard to the aim pursued, “a disproportionate and
intolerable interference, impairing the very substance of the right“. 190 The
importance of copyright protection in cases of unauthorised file sharing
means that it might be necessary to restrict other rights in order to safeguard
copyright; the question is, how much can those rights be restricted without
impairing their very substance?
4.2.2 Freedom to conduct a business

According to the Explanations relating to the Charter of Fundamental
Rights 191, Article 16 of the Charter is based on CJEU case law which has
recognised freedom to exercise an economic or commercial activity 192 and
freedom of contract. 193 The freedom to conduct a business may be subject to
the limitations provided for in Article 52(1) of the Charter.
Freedom to conduct a business, as an expression of the general principle of

freedom to pursue a trade or profession, “cannot be interpreted in isolation
from the general principles relating to protection of intellectual property
rights and international obligations entered into in that sphere by the
Community and by the Member States”. 194
To what extent can the freedom to conduct a business be restricted in order

to protect the rights of others? In the Metronome Musik case, concerning
commercial rental of phonograms, the Court stated that if the objective
(copyright protection) could not be “achieved by measures which preserved
to a greater extent the entrepreneurial freedom of individuals or
undertakings specialising in the commercial rental of phonograms”, the
consequences of introducing an exclusive rental right could not “be regarded
as disproportionate and intolerable.” 195 However, at the same time,
regardless of how important it is to protect the rights of others, the freedom
to conduct a business cannot be restricted to such an extent as to impair the
very substance of the right. This is especially evident in the recent
189
IFPI Digital Music Report 2011, p.11, at
http://www.ifpi.org/content/library/DMR2011.pdf (2012-05-13)
190
Case 5/88 Wachauf , para. 18; Case C-177/90 Kühn, para. 16; Case C-22/94 The Irish
Farmers' Association and Others, para. 27; Joined cases C-402/05 P & C-415/05 P Kadi,
para.355. See also T.TRIDIMAS: The general principles of EU law, p. 313
191
Explanations relating to the Charter of Fundamental Rights
192
Case 4/73 Nold, para. 14; Case 230-78 SpA Eridiana and others, paras. 20, 31
193
Case C-240/97 Spain v Commission, para. 99
194
Case C-200/96 Metronome Musik, para.26
195
Ibid.
43
Interseroh 196 case, concerning quite a different factual situation, namely the
obligation to disclose the name of the waste producer to the consignee of a
shipment of waste.
In the Interseroh case, the right of protection of personal data was balanced
against the freedom to conduct a business. The non-disclosure was not
permitted under the relevant Regulation even though disclosure would have
negatively affected the protection of business secrets. In addition, the Court
stated that any unjustified breach of the protection of business secrets,
assuming it were established, would not be such as to limit the scope of the
relevant provision in the Regulation, but “rather to call into question the
validity of that provision.“ 197 The scope of Article 16 of the Charter seems
to be rather wide; nonetheless, it is evident that business secrets constitute a
substantial part of the freedom to conduct a business, since the impediment
at issue was likely to affect the validity of Union legislation. Disclosure of
data would have impaired the substance of the right, as there is no
mechanism to protect business secrets but just to keep them secret.
Could an analogy be drawn to Scarlet Extended and SABAM v. Netlog? In

those cases, the non-installation of a general monitoring system de facto
affected the substance of copyright, but was legitimate due to the need to
protect other fundamental rights. Such general monitoring is absolutely
prohibited under secondary legislation, but it is hard to imagine any other
obvious preventive measures. Could that lead to invalidity of the prohibition
of general monitoring? At the same time, such invalidity would enable
general monitoring, which impairs the freedom of expression and the right
to protection of personal data. Monitoring, even in order to enforce
copyright protection, is a type of private censorship. After all, general
monitoring is not prohibited without a reason: constant monitoring of all
content passing through or stored on the ISP’s network in order to spot
illegal activity would lead to a “chilling effect” on Internet
communications. 198
In any case, as the Court stated in Scarlet Extended, forcing the ISP to
install a complicated, costly, permanent computer system at its own expense
“would result in a serious infringement of the freedom of the ISP concerned
to conduct its business”. 199 It is logical to conclude that in the context of
copyright enforcement, it takes quite a lot to impair the very substance of
the freedom to conduct a business. A serious infringement, no matter how
serious, is still not the same as impairment of the substance of the right, and
therefore x≠0. Therefore, if we only had to balance copyright against the
rights of the ISPs, copyright would be protected at the expense of the
freedom to conduct a business, but it could still be a fair balance. However,
196
Case C-1/11 Interseroh
197
Case C-1/11 Interseroh, para.46
198
E.WERKERS & F. COUDERT: “The Fight Against Piracy in Peer-to-Peer Networks:
the Sword of Damocles Hanging over ISP’s Head?“, p.340
199
Case C-70/10 Scarlet Extended, para.48
44
in reality, there are more rights involved, and all of them have to be taken
into account.
4.2.3 Protection of personal data

The right to protection of personal data is enshrined in Article 8 of the
Charter and Article 8 ECHR. It protected by means of Directive 95/46/EC.
Pursuant to both Article 52(1) of the Charter and Article 8(2) ECHR, the
right to protection of private data can be restricted for the protection of the
rights and freedoms of others.
It follows from settled case law that the provisions of a directive must be
interpreted in the light of the aims pursued by the directive and the system it
establishes. 200 As stated in Article 1 of the Directive, its objective is to
protect the fundamental rights and freedoms of natural persons and, in
particular, their right to privacy, with respect to the processing of personal
data, while also permitting the free flow of personal data. 201
According to Article 13(1)(g) of the Directive, Member States may restrict

the scope of certain rights and obligations provided for by the Directive,
when such a restriction is necessary to safeguard the rights or freedoms of
others. As the Court expressed in Promusicae, 202 the obligation of
confidentiality of personal data can indeed be restricted when doing so is
necessary for the protection of intellectual property rights.
In the Satamedia case, which concerned Article 9 of Directive 95/46/EC (an

exemption for the purposes of journalism), the right to protection of
personal data had to be reconciled with the freedom of expression. 203 In
order to reconcile the two fundamental rights for the purposes of Directive
95/46/EC, the Member States have to limit the protection of personal
data. 204 Since the Satamedia case concerned Article 9, the derogations had
to be made solely for journalistic purposes or the purpose of artistic or
literary expression. 205
The Court emphasised importance of the right to freedom of expression in

every democratic society and the necessity to interpret notions relating to
that freedom broadly. The Court then stated that “in order to achieve a
balance between the two fundamental rights, the protection of the
fundamental right to privacy requires that the derogations and limitations in
relation to the protection of data provided [...] must apply only in so far as is
strictly necessary.“ 206 To put it bluntly, even given a broad interpretation of
freedom of expression as a value of a democratic society, the protection of
200
Case C-73/07 Satamedia, para. 51; see also Case C-265/07 Caffaro, para. 14
201
Case C-73/07 Satamedia para. 52
202
Case C-275/06 Promusicae, paras.49-53
203
Case C-73/07 Satamedia para. 53
204
Ibid., para.55
205
Ibid., para.55
206
Ibid., para. 56
45
personal data is still of such importance as to be restricted only when the
restriction is crucial for the protection of freedom of expression.
Would the prohibition to disclose the personal data have impaired the
substance of freedom of expression in the Satamedia case? In other words,
was the restriction indispensable? Looking at the facts at the case, the
question should probably be answered in the affirmative, even though it was
left to the national court to determine. 207 The company in the Satamedia
case collected public data from the Finnish tax authorities for the purposes
of publishing extracts from those data in a regional newspaper each year.
The information comprised the personal details of natural persons whose
income exceeded certain thresholds. While the newspaper also contained
articles, summaries and advertisements, its main purpose was to publish
personal tax information. In relation to the data, the newspaper also carried a
statement that the personal data disclosed may be removed on request and
without charge. Later, the data published in the newspaper was transferred
to an associated company in the form of CD-ROM disc. Both companies
signed an agreement with a mobile telephony company which created a text-
messaging service allowing mobile phone users to receive information
published in the newspaper on their telephone for a charge. Personal data
could be removed from that service on request. 208
Whether these activities had to be considered as activities involving the

processing of personal data carried out “solely for journalistic purposes”
depended on whether the sole object of those activities was the disclosure to
the public of information, opinions or ideas. The conclusion that can be
drawn from the comparison with the Satamedia case is that scope of
freedom of expression and information is very closely connected to the
genuine objective of the activities. Consequently, the right to protection of
personal data can be limited when doing so is essential to facilitate the
disclosure to the public of information, opinions or ideas. In terms of
balancing, it can be concluded that the right to protection personal data can
be limited, but only when such restriction is necessary to protect the very
substance of the other right. It is hard to determine how far-reaching the
restriction of the right to personal data protection in the Satamedia case was;
names and financial status constitute quite sensitive personal information;
however, the details could be removed from the newspaper on request. The
restriction certainly did not impair the very substance of the right; in terms
of balancing, the estimated value of x could be somewhere between 1 and 5.
By contrast, when it comes to copyright infringements, the need to restrict

the right to personal data protection can vary. While it is indispensible to
disclose the data of the infringers, it is also imperative to take into account
the rights of those who have not taken part in the infringements. A
preventive measure which is more restrictive than absolutely necessary
would without a doubt impair the very substance of the right to personal
data protection. In the balancing equation, this would mean that x=0 and
207
Ibid., para.62
208
Ibid., paras. 25-29
46
that a fair balance cannot be struck. It would also mean that striking a fair
balance is only possible if there exists a realistic way to effectively protect
copyright without impairing the very substance of the right to protection of
personal data, but also without impairing the very substance of the other
rights involved, such as the freedom of expression and information.
4.2.4 Freedom of expression and information

Freedom of expression and information, enshrined in Article 11 of the
Charter (and Article 10 ECHR), is an essential foundation of a pluralist,
democratic society, reflecting the values on which the Union is based. 209 It
includes the freedom to hold opinions and to receive and impart information
and ideas without interference by public authority and regardless of frontiers
and is “both a right in itself but also a matrix essential to nearly every other
form of freedom “and “is inseparable from the objective of democracy“. 210
It follows from the express wording of Articles 10 ECHR that freedom of

expression can be subject to limitations justified by a pressing social need
and proportionate to the legitimate aim pursued. 211 Therefore, freedom of
expression and information is not absolute, unlike, for instance, the right to
life. Consequently, the substance of freedom of expression and information
can be restricted. 212
As stated above, freedom of expression is inseparable from the objective of

democracy – but is it within the interest of a democratic state to allow mass
infringements of others rights, such as in cases of online piracy? Where does
the genuine freedom of information end and where does online piracy
begin? How much can the freedom of information can be restricted to
safeguard the rights of others, namely the copyright holders? Since there is
no case law that answers these particular questions, an analogy has to be
made with other case law in which the freedom of expression was
reconciled with other rights.
In the FIFA cases 213 from the General Court, the national measures at stake
were intended to protect the right to information as they granted television
access for the general public to events of major importance for society. At
the same time, the measures restricted the right to property, but the General
Court once again reaffirmed that such restriction was permitted, provided
that it in fact corresponded to objectives in the public interest and did not
impair the very substance of the right to property. 214
209
Case C-163/10 Criminal proceedings against Aldo Patriciello, para. 31
210
AG Jääskinen in Case C-163/10 Criminal proceedings against Aldo Patriciello, para.35
211
Case C-112/00 Schmidberger, para.79
212
Case C-112/00 Schmidberger, para.80.
213
Case T-385/07 FIFA; Case T-68/08 FIFA
214
Case T-68/08 FIFA, para.143; Case T-385/07 FIFA, para.139. See also Case
C-347/03 Regione autonoma Friuli-Venezia Giulia and ERSA, para.119, and Joined Cases
C-154/04 and C-155/04 Alliance for Natural Health and Others, para.126.
47
In the Schmidberger case, the Court held that the imposition of stricter
conditions on the demonstration in question would have been “perceived as
an excessive restriction, depriving the action of a substantial part of its
scope” 215. The Court emphasised that while the action entailed
inconvenience for non-participants, this inconvenience could be tolerated
provided that the objective pursued was the public and lawful demonstration
of an opinion. 216
In that regard, Scarlet Extended and SABAM v. Netlog are comparable with
the Schmidberger case; the general monitoring systems, filtering both lawful
and unlawful communications, would have completely undermined the
freedom of information (thus impairing the very substance of it; x=0), and
was therefore not an acceptable means for copyright enforcement.
However, it remains unclear whether there can exist measures which

effectively prevent copyright infringements and at the same time do not
impair the very substance of the freedom of expression. As soon as the
measure cannot separate lawful and unlawful communication, the measure
will impair the very substance of freedom of information, and when x=0, no
fair balance can be struck.
4.2.5 Conclusion
The key to finding a fair balance lies in the very substance of the rights
involved. The ultimate measure is one that effectively protects the substance
of copyright while not impairing the substance of the other rights involved.
The challenge is to “achieve and maintain the balance, ‘offering enough
control to motivate authors, inventors and publishers, but not so much
control as to threaten important public policy goals.’” 217
Is a fair balance between copyright and other fundamental rights possible

under EU law, or is it a complete utopia? What could be done in order to
strike such a balance? These are the questions for the final part of this thesis,
Part IV.
4.2.6 Part III – post scriptum

Before moving on to Part IV, here is an additional thing I observed when
looking at the relevant fundamental rights: there is an inherent problem in
the balancing between the rights of the copyright holders and the rights of
the Internet users. I am not sure how the problem could be solved, but here
it is: can the balancing ever be “fair” if the need to combat illegal file
sharing and protect copyright can be outweighed by the need to protect the
rights of all the users? Is it reasonable to treat the rights of those who
215
Case C-112/00 Schmidberger , para.90
216
Ibid., para.91
217
N. LUCCHI: Digital Media & Intellectual Property/ Management of Rights and
Consumer Protection in a Comparative Analysis, p.39.
48
deliberately infringe copyright and the rights of those who have never
shared a single file as a “lump sum” in the equation of balancing?
Normal online communication, as a way to express opinions and ideas,218

and a way to access and impart information, is within the scope of freedom
of expression and information. But is really this the case when it comes to
unauthorised file sharing? Is an action of unauthorised reproduction and
distribution – an action that impairs the very substance of copyright – still
within the scope of Article 8 of the Charter? Does the fact that some of the
filtered communication is completely illegitimate not undermine the value
of freedom of information?
Indeed, what kind of freedom expression and information is online piracy?

Access to information is in practice available through legitimate channels.
(Unauthorised file sharing, of course, has its reasons, some of which might
be legitimate. For example, the available sources of legal content might not
be attractive due to various reasons (inconvenient technology; complicated
methods of payment, or extra services that are not interesting for the actual
user but significantly increase the cost of the main service). Another reason
could be that the actual file is no longer be available through legitimate
sources (e.g. authorised copies are no longer sold and the only way to
acquire the file is to get an illegal copy). 219 Finally, some users sample
music before deciding what to buy. 220)
Probably the main reason for unauthorised file sharing is that all the content
is easily accessible and does not cost money: some users download instead
of purchasing. 221 According to statistics, by 2006, 60% of all consumer
Internet traffic consisted of file sharing (mostly of video files). 222 This data
implies that a significant amount of Internet user share files; yet, in the
balancing test, the rights of those who do not share files are taken into
account and prevail against the need to protect copyright. Treating the rights
of all the users as “a lump sum” when assessing a general monitoring
system means that the file sharers could basically “hide behind the backs” of
those who are completely innocent.
The fact that the rights of people that illegally share files and the rights of
those who do not are summed up, which affects the value of freedom of
expression and information in a very peculiar way. One the one hand, the
rights of innocent users of the Internet should not be jeopardised only
because some of the Internet users engage in infringing activities. On the
other hand, the file sharers should not escape responsibility only because
there are still some people among the Internet users that have not been file
sharing. It is explicitly stated in Article 54 of the Charter that nothing in the
218
Compare Case C-73/07 Satamedia
219
L. LESSIG: Free culture, Chapter 5, at http://www.authorama.com/free-culture-8.html
(2012-05-13)
220
Ibid.
221
Ibid.
222
F. OBERHOLZER & K. STRUMPF: “File Sharing and Copyright”, p. 29
49
Charter implies “any right to engage in any activity or to perform any act
aimed at the destruction of any of the rights and freedoms recognised in this
Charter“. Could this Article be interpreted as excluding illegal file sharing
from the scope of freedom of expression and information? This would
further complicate the balancing (as if it were not complicated enough!)
I will not answer these question, although they should be kept in mind for
the final discussion, because the mere fact that these questions have popped
up implies that there is something irregular about this balancing. Or this
equation. Whichever you prefer.
50
5 Part IV: striking a fair balance
– how to solve the puzzle
In the war against online piracy, copyright is being torn between two
extremes. There is a continuous struggle and a violent hierarchy: which
extreme should prevail depends on whom you ask. Some would prefer very
weak copyright protection, if any at all (for example, the Pirate
movement 223), whereas the copyright holders are of the opposite opinion
and seem to be willing to protect copyright at any cost (which is evident
from the facts in Scarlet Extended and SABAM v. Netlog).
These contrasts have become even more visible since the majority of the
Member States have signed ACTA 224 and tens of thousands of people have
immediately reacted against it 225 (including the Anonymous group,
“a decentralized network of individuals focused on promoting access to
information, free speech, and transparency”). 226
The truth is, no matter which extreme you choose, they both might lead to a
completely undesirable outcome. Seeing copyright as an individual right
and the rights of the Internet users as the “general interest”, since they are
the basis for a democratic society, would mean that the general interest
should take precedence over other considerations. 227 However, if effective
measures cannot be taken to protect copyright, countless works will fall into
an artificial public domain, meaning that in theory, someone has the
exclusive right to reproduce and distribute the works, but in practice, those
works are being shared without permission and this behaviour cannot really
be stopped. The very substance of copyright would be impaired; if most of
the copyright holders are deprived of their exclusive rights, it is suddenly
not really a matter of an individual right anymore. It is a denial of the
current form of the right. Conversely, if excessively strict measures are
allowed in order to protect the very substance of copyright, the values that
are at the core of a democratic society will be undermined. Copyright is
somewhere between the devil and the deep blue sea; the extremes can only
be avoided if a fair balance is struck. But is it possible to achieve a fair
balance in practice?
223
A. RYDELL & S. SUNDBERG: Piraterna. Historien om The Pirate Bay, Piratpartiet och
Piratbyrån, p. 143 ff.
224
http://www.wired.co.uk/news/archive/2012-01/26/eu-signs-up-to-acta (2012-05-15),
http://register.consilium.europa.eu/pdf/en/11/st12/st12196.en11.pdf (2012-05-16)
225
https://www.accessnow.org/policy-activism/press-blog/acta-protest-feb-11 (2012-05-15)
226
http://anonymous.pysia.info/ (2012-05-15)
227
AG Mischo in Case C-331/88 ex parte Fedesa, para.42
51
5.1 Is there a need for stricter measures?
To begin with, is there even a need for stricter measures? What impact does
unauthorised file sharing have on copyright and what will happen if
copyright infringements cannot be prevented?
The right to property has to be viewed in relation to its function in the

society and may be restricted, provided that there restrictions correspond to
objectives of public interest pursued by the Union and do not constitute, in
relation to the aim pursued, a disproportionate and intolerable interference,
impairing the very substance of the right. 228 Given the very specific nature
of copyright, a level of protection that is not high enough has almost the
same effects as no protection at all: many copyright holders are deprived of
their exclusive right of reproduction and distribution. Unauthorised file
sharing impairs the very substance of copyright, and without any effective
measures to stop the sharing, most of the copyrighted works fall into a
forced public domain: while the works are not really in the public domain,
they are reproduced and distributed as if that was the case.
As confirmed in the Bonnier case, national measures can indeed strike a fair
balance between fundamental rights if they allow the national court to weigh
the conflicting interests involved, on the basis of the facts of each case and
taking due account of the requirements of the principle of proportionality. 229
In that particular case, the national measures were regarded as “facilitating
the investigation into an infringement of copyright or impairment of such a
right“. Therefore, the reasons for the measure outweighed the nuisance or
other harm which the measure could entail for the person affected by it or
for some other conflicting interest. 230
Measures such as those in the Bonnier case are better than nothing;
however, without any possibility to filter the communications, only a
limited number of infringements can be discovered. When there are no
efficient means to find out about the infringements, most copyright holders
are deprived of the substance of the intellectual property right. By effect, the
lack of effective measures is similar to expropriation. 231
The Member States have the obligation to provide for the measures,
procedures and remedies necessary to ensure the enforcement of the
intellectual property rights. 232 Moreover, pursuant to Article 19 of the TEU,
the Member States have a general obligation to provide remedies sufficient
to ensure effective legal protection in the fields covered by Union law. It is
settled case law that procedural rules governing actions for safeguarding an
228
Joined cases C-402/05 P & C-415/05 P Kadi, para.55; Case C-347/03 Regione
autonoma Friuli-Venezia Giulia and ERSA, para. 119
229
Case C-461/10 Bonnier, para. 59
230
Ibid., para.58
231
Compare Article 1 of Protocol 1 of the ECHR
232
Article 3 of IPRED
52
individual’s rights under EU law must not make it in practice impossible or
excessively difficult to exercise rights conferred by EU law. 233
The mere fact that the Member States have to strike a fair balance between
intellectual property rights and other fundamental rights, when
implementing secondary legislation and when applying the transposing
national laws, in practice means that, in certain cases, it might become
impossible or excessively hard for the copyright holders to enforce their
rights. If effective protection of copyright means that the very substance of
the rights of others will be impaired, the measure is not acceptable, which
leads to a complete lack of balance to the detriment of the copyright holders.
The question is; could more effective measures, than those based entirely on
a case-by-case assessment, be acceptable? To put it bluntly: must the
copyright holders somehow keep an eye on what is being shared online (i.e.
occasionally check the content of the most popular file sharing websites)
and step in when the infringements become intolerable? Alternatively,
should some type of non-general monitoring or blocking of content be used
(if it is not too burdensome to the intermediary and if it does not undermine
the rights of the users)? How realistic are such measures?
5.2 Are stricter measures possible?

To begin with, just to make clear, a measure will never ensure a fair balance
if it is excessively costly and has to be installed at the expense of the
intermediary because that impairs the very substance of the intermediary’s
freedom to conduct a business. This conclusion is in line with the findings
of the Court in Scarlet Extended and SABAM v. Netlog. It also follows from
the legal definition that an "information society service" only exists by
virtue of sending and receiving information, and therefore blocking of
information should per definition not constitute a part of an “information
society service”: “the act of preventing the delivery or receipt of information
is a negation of the service envisioned by the law“. 234
It is settled case law that measures can be taken to prevent future

infringements:
“[I]n view of the objective pursued by Directive 2004/48, which is

that the Member States should ensure, especially in the information
society, effective protection of intellectual property [...], the
jurisdiction conferred, in accordance with the third sentence of Article
11 of the directive, on national courts must allow them to order an
online service provider, such as a provider making an online
marketplace available to internet users, to take measures that
contribute not only to bringing to an end infringements committed
233
D.CHALMERS, ET.AL.: European Union Law, p. 276; Case C-279/09 DEB, para.28; Case
33/76 Rewe-Zentralfinanz and Rewe-Zentral , para. 5; Case C-432/05 Unibet, para. 43;
Case C-268/06 Impact, para. 46; Case C-13/01 Safalero, para. 49;
234
C.MANARA: “Block the Filtering! A Critical Approach to the SABAM Cases”, p.15
53
through that marketplace, but also to preventing further
infringements.“ 235
Thus, the mere fact that the system is preventive does not affect the
balancing, as long as it does not impair the substance of other fundamental
rights. It follows that if a preventive measure is to be accepted, it firstly has
to be able to distinguish between lawful and unlawful communications in
order not to impair the substance of the freedom of information and the right
to protection of personal data.
If a measure applies to all communications, even to those of people that

have never engaged in unlawful file sharing, there is no doubt that the
measure does not respect the freedom of expression and information. The
fact that this freedom is at the very core of a democratic society makes the
contested system even more inacceptable: Internet users, being aware that
their communication is being monitored, might choose to “limit their
exchanges”, or “feel constrained to do so”. 236 Furthermore, nowadays,
when cloud computing is very popular (files can be copied from a hard drive
to a server in order to make them accessible from different computers),
measures that are too general are likely to block any work that the copyright
holder legitimately wants to store online. 237 In order to avoid such
situations, the preventive system would need to separate unauthorised file
sharing from lawful activities, including sharing of material that is not
copyrighted.
Secondly, any technological protection measures require an appropriate

legal basis. General monitoring is prohibited under Article 15(1) of the E-
commerce Directive. Nevertheless, non-general measures should be
permitted under the E-commerce Directive if they do not require active
monitoring of the communications, ensure a fair balance and respect the
principle of proportionality. Selective measures, for instance, blocking of
certain websites that known as file sharing sources, could be an alternative.
For example, in the UK, some ISPs have to block the Pirate Bay as a
website that “infringes copyright on a massive scale“. However, some critics
argue that blocking can be circumvented using proxy servers and other
techniques, and therefore is not really effective. 238 Furthermore, blocking
the information does not eliminate the problem; it fights the effects, not the
causes. In order to have any effect on the behaviour of the offenders, the
measure should instead lead to sanctions. As Jim Killock from the Open
Rights Group expressed, blocking measures may have quite the opposite
effect: “It will fuel calls for further, wider and even more drastic internet
censorship of many kinds, from pornography to extremism. Internet
235
Case C-324/09 L’Oreal, para.131; Case C-275/06 Promusicae, para. 4; Case C-70/10
Scarlet Extended, para.31
236
C.MANARA: “Block the Filtering! A Critical Approach to the SABAM Cases”, p.24
237
Ibid., p.12
238
http://www.swedishwire.com/business/13682-pirate-bay-blocked-in-uk-after-high-court-
rule (2012-05-07)
54
censorship is growing in scope and becoming easier. Yet it never has the
effect desired. It simply turns criminals into heroes”. 239
On websites like The Pirate Bay, as soon as the user begins sharing
information, that transaction occurs peer-to-peer, and thus the website acts
“more like a dynamic map of who’s sharing what and where to find it, after
which the transactions occur privately”. 240 Therefore, another possibility
could be technical filtering of certain websites or services that are normally
used for file sharing. It would identify infringers as well as discourage
future infringements, considering that fact that sharing by other means, such
as email, is much less convenient that using a p2p service. In order to
respect sensitive private data, filtering of certain websites and services, such
as banks, hospitals and social networks with no uploading possibilities
would be strictly prohibited. The main problem with this type of measure is
that there is no clear line between such selective filtering and prohibited
active monitoring, especially considering the fact that technical filtering is
likely to have extraterritorial effects, just like general monitoring, since
filtering aims at the total sum of information that passes through the
provider‘s service. 241 This may result in files being blocked merely because
they have moved through the European Union and have been recognised
there. 242
Is filtering technically effective? Not really. For instance, in the French

Yahoo case, the judge pointed out that filtering of IP addresses only
prevented the spread of illegal content in France 70% of the time. There
have also been other rulings concluding that technical filtering is
ineffective. 243 Furthermore, nowadays, there exist technical possibilities to
hide the IP address 244 when browsing or downloading files, some of which
are even offered by Internet service providers; 245 such technologies
neutralise the measures that attempt to filter communication and trace the IP
addresses of possible infringers. That narrows down the technical
possibilities of detecting infringements even more.
However, under the assumption that there actually exist technical and legal
possibilities to apply selective measures and target certain communications
without jeopardising the rights of the users, such measures would still need
to be in line with the principle of proportionality. 246
239
http://www.ultimate-
guitar.com/news/industry_news/pirate_bay_officially_blocked_in_uk.html (2012-05-07)
240
http://techland.time.com/2012/05/01/british-court-orders-isps-to-block-pirate-bay-is-the-
u-s-next/ (2012-05-14)
241
On general monitoring, compare C.MANARA: “Block the Filtering! A Critical Approach
to the SABAM Cases”, p.21
242
Ibid., p.21
243
Ibid., p.12
244
http://whatismyipaddress.com/hide-ip, http://torrentfreak.com/5-ways-to-download-
torrents-anonymously-100819/ (2012-05-07)
245
http://bredband.bahnhof.se/extra-services/anonym-pa-internet (2012-05-14)
246
Case C-275/06 Promusicae, para.68; Case C-438/05 Viking Line, para.46; Case C-
112/00 Schmidberger, para.77; Case C-36/02 Omega Spielhallen , para. 36
55
Proportionality requires the restriction to be suitable for ensuring the
attainment of the legitimate objective pursued and not go beyond what is
necessary to achieve that objective. 247 A restrictive measure can be regarded
as suitable for securing the attainment of the objective pursued only if it
”genuinely reflects a concern to attain that objective in a consistent and
systematic manner”. 248 The requirement of suitability is especially observed
in areas where the Member State has a wide margin of discretion, such as
gambling, 249 environmental policy. 250 Balancing of rights is also such an
area: according to settled case law of the European Court of Human Rights,
the state is given a wide margin of discretion when there is a clash between
fundamental rights. 251
Could a selective measure be applied in a coherent and systematic manner

and thus suitable for copyright protection, if it is only applied to certain
websites and services? Probably not; new means of file sharing are
constantly developing. For example, after the ban of Napster, “its clones
[…] have spread on the Net with extreme success.” 252 From a practical
perspective, it would challenging (and not very realistic) to target all the
sources of file sharing, as new ones keep on appearing. Moreover, would it
really be the least restrictive means to attain that objective, 253 particularly
considering the possible negative effects it might have on the overall flow of
information? If not, then the measure is disproportionate and is
consequently not a realistic alternative.
An attempt to cover the enforcement of intellectual property rights in a way

that is adequate for the digital environment has recently been made in the
Anti-Counterfeiting Trade Agreement (“ACTA”). 254 ACTA contains a
whole section on the enforcement of intellectual property rights in the
digital environment and establishes complementary application of the
provisions related to civil and criminal enforcement. It encourages digital
rights management and the disclosure of personal information of Internet
users by online service providers. It also requires cooperation within the
247
Case C-438/05 Viking Line, para.90; Case C-55/94 Gebhard, para.37
248
Case C-28/09 Commission v. Austria, para.126; Case C-169/07 Hartlauer, para. 55;
Joined Cases C-171/07 and C-172/07 Apothekerkammer des Saarlandes and Others , para.
42; Case C-137/09 Josemans, para. 70
249
Case C-243/01 Gambelli, para.67
250
Case C-28/09, Commission v. Austria, para.126
251
X. GROUSSOT: “Rock the KaZaA: Another Clash of Fundamental Rights”, CMLRev., p.
1762; Case Chassagnou v. France
252
Consumer Protection in a Comparative Analysis, p.75
253
Case C-320/03 Commission v Austria, para. 87; Case C-28/09 Commission v. Austria,
para.140
254
A. J. Cerda Silva: “Enforcing Intellectual Property Rights by Diminishing Privacy: How
the Anti-Counterfeiting Trade Agreement Jeopardizes the Right to Privacy”, p. 602; see
also KIMBERLEE WEATHERALL: “ACTA as a new kind of international IP lawmaking”, 26
Am. U. Int'l L. Rev. 839 2010-2011
56
business community in order to fight infringement of intellectual property
rights. 255
Privacy and data protection is emphasised in ACTA; nothing in ACTA shall

detract from national legislation protecting these rights. It does not pre-empt
national provisions that “regulate access to or disclosure of personal data in
civil enforcement and border measures”. 256 It also encourages parties to
order online service providers to “transfer expeditiously information on the
identity of subscribers to right holders in claims of infringement” and
“preserves privacy in the implementation of enforcement procedures,
cooperation within the business community, and the identification of
Internet users”. 257 Furthermore, proportionality needs be taken into account
when implementing the measures. 258
The provisions of ACTA on the identification of subscribers apply not only

to criminal enforcement, but also to civil enforcement 259, and intend to
balance competing interests. However, some claim that the balance is
“elusive, particularly because the underlying interests conflict”. 260 Despite
its social value for culture, copyright is a “private right”, while privacy and
personal data are “essential to the very idea of democracy and as safeguards
of human rights.” 261 Indeed, ACTA lacks specific safeguards for the right to
privacy, which also means that it would not lead to a proper legal
harmonisation among the Member States. The problem is especially evident
in the case of countries that lack adequate technical assistance or suffer from
“political pressure to turn over information about alleged infringers“. 262
The issue of file sharing is already very sensitive, and it would not be
realistic to diminish the right to protection of private data and the freedom
of information. The main problem with ACTA is that full compliance with
the encouraged terms of ACTA would require the EU Member States to
provide for an obligation for ISPs to identify subscribers for purposes of
civil enforcement, even when such an obligation does not exist under Union
law. 263 But most importantly, ACTA has received predominantly negative
reactions from the Internet users, 264 which is a clear implication that
ordinary citizens do not support the attempts to strengthen intellectual
property rights.
255
A. J. CERDA SILVA: “Enforcing Intellectual Property Rights by Diminishing Privacy:
How the Anti-Counterfeiting Trade Agreement Jeopardizes the Right to Privacy”, p. 609
256
Ibid., p. 610
257
Ibid., p. 610
258
Ibid., p. 627
259
Ibid., p. 625
260
Ibid., p. 611
261
Ibid., p. 612
262
Ibid., p. 630
263
Ibid., p. 626
264
http://www.petitiononline.com/stopacta/petition.html (2012-05-15);
http://www.youtube.com/watch?v=8XoFGApjhFE (2012-05-15);
http://ipjustice.org/wp/campaigns/acta/ (2012-05-15)
57
5.3 What is next?
Telling the Member States to strike a fair balance and giving them a wide
margin of discretion implies how sensitive the issue of file sharing is. The
Member States are completely free to choose whether to oblige the
intermediaries to disclose personal data for the purposes of copyright
protection; however, such freedom of choice can lead to a partitioning of the
Union. Some Member States might prefer effective protection of copyright,
while others might emphasise the right to personal data protection, 265 or the
freedom of information. For instance, in some Member States, such as
Finland (the first country in the world to declare broadband Internet access a
legal right 266), the scope of freedom of information is wider that in others. It
could possibly be claimed that access to Internet is a part of Finland’s
national identity, 267 as a right that extends the scope of freedom of
information even further. Of course, that right can also be restricted and
online content can be blocked, if that is necessary in order to fight serious
crime. 268 However, what would be the acceptable way to prevent illegal file
sharing in a Member State where such importance is attached to the rights of
the Internet users? Could a fair balance ever be achieved? This is yet
another reason why balancing of fundamental rights at the national level
sounds good in theory, but may lead to unpredictable results in practice.
Given current legal and technical possibilities, copyright enforcement in

cases of unauthorised file sharing resembles a Russian roulette; due to the
lack of preventive means, not all the infringements are detected and not all
the infringers are held responsible. However, in a way, copyright is still an
individual right and thus a private matter of the right holders. It is
undeniable that infringements, when detected, can be fought, either by
litigation or by simply contacting the website and requesting to remove the
infringing content. Indeed, direct communication with the intermediaries is
a very smooth and effective way to combat copyright infringements, as
websites tend to remove the possibly infringing content on request by the
right holders without any legal proceedings. 269
Then again, when content is removed on request, without any legal

proceedings, this possibility can be easily abused. Since copyright requires
no registration, there is no way to prove whether the material is copyrighted
and whom the rights belong to. For example, a Dutch experiment has
proved that the intermediaries are likely to remove the content on request
without any further considerations. (For the purposes of the experiment, a
text of a minor nineteenth-century author, originally published in 1871, was
posted on several websites alongside the fact that it belonged to the public
domain. Some weeks later, a request was sent to the intermediaries to
265
X. GROUSSOT, “Rock the KaZaA: Another Clash of Fundamental Rights”, CMLRev., p.
1765
266
http://edition.cnn.com/2009/TECH/10/15/finland.internet.rights/ (2012-05-13)
267
Art.4(2)TEU
268
I. BROWN: “Internet censorship: be careful what you ask for“, p.7
269
C.MANARA: “Block the Filtering! A Critical Approach to the SABAM Cases”, p. 19
58
remove the content, signed by someone pretending to be the copyright
holder. 70% of the technical intermediaries removed the content “without
trying to verify whether the legal conditions were met to do so”). 270 In the
worst case, such requests to remove material could have the effect of de
facto censorship; Internet censorship, which by definition interferes with the
freedom of expression and information and is very popular among
totalitarian states. 271 Yet another pattern that is likely to impair the very
substance of a fundamental right. It seems that we have reached a dead end.
Could it be that the best solution to the file sharing problem is not to fight
the effects, but to eliminate the causes? Some say that decriminalising “non-
commercial file sharing and forcing the market to adapt is not just the best
solution. It's the only solution, unless we want an ever more extensive
control of what citizens do on the Internet.” 272 Others, for instance, William
Patry, 273 claim that sometimes law is not the answer: “If there are non-
legislative ways to solve whatever the problem is, the last thing we should
do is for lawyers, courts or governments to get involved.” 274
I would like to agree. “Decriminalisation” and “forcing the market to adopt”

are great slogans, but changes will not happen overnight. I believe that
changes have to be made step-by-step. After all, copyright is necessary to in
order to reward authors and to provide incentives for creativity, and file
sharing undermines the very substance of their exclusive rights. Therefore,
the challenge is “to achieve and maintain balance, “offering enough control
to motivate authors […], but not so much control as to threaten important
public policy goals’”, 275 and there are several ways that could lead help
achieve that goal.
5.3.1 Business models

“As we move to an access-based world of distribution of copyrighted
works, a copyright system that neglected access controls would make
copyright illusory, and in the long run it would disserve
consumers.” 276
New technologies have brought along some drastic changes in consumer

behaviour; a person who would never steal a tangible item can consider
270
C.MANARA: “Block the Filtering! A Critical Approach to the SABAM Cases”, p.19; see
also http://ww.bof.nl/2004/10/13/providers-verwijderen-tekst-multatuli/ (2012-05-15)
271
I. BROWN: “Internet censorship: be careful what you ask for“, p.3
272
http://arstechnica.com/tech-policy/news/2008/01/swedish-prosecutors-dump-4000-legal-
docs-on-the-pirate-bay.ars (2012-05-15)
273
Senior Copyright Counsel to Google Inc.
274
W. PATRY: How to fix copyright, p.141
275
276
J. GINSBURG: “From having copies to experiencing works”, 50 J. Copyright Soc'y
U.S.A. 113 2002-2003
59
downloading illegal copies. 277 Why? Well, probably because downloading
is technically not exactly the same as stealing. 278 Of course, some people
download because they do not want to pay; however, sometimes
downloading is the only way to get access to the copyrighted material that
you are interested in. For example, a certain TV show might be interesting,
but you cannot get access to it; the show might not run on local TV, has not
been released or re-released on DVD, is not available online from a
legitimate source or is only available to users located in certain countries. In
other words, you want it but you cannot get it, even if you are willing to pay
for it. You search for it online and several clicks later, you are at The Pirate
Bay and have a chance to get the whole season of the show. Right now. For
free. What would you do?
If it the copyrighted material were available from an authorised source at a

relatively low price, illegal file sharing would become less attractive,
especially considering the fact that injunctions could still be used against
infringers – the adoption of new business models does not presuppose
changes or abolishment of copyright laws. While sharing might not
disappear completely, it would probably be less justifiable if authorised
copies were at least as accessible as illegal ones.
Often, those in charge of old distribution technologies are “afraid of losing

control over authors, composers, and performers, because their role would
become unnecessary.” 279 What is more, they do not see the possibilities of
the new technology, “such as the dramatic reduction of production and
distribution costs.” 280 For instance, in the music industry, expensive
equipment has been replaced with significantly cheaper computer
technologies. 281 If technology is used in production, why should it be
ignored when it comes to distribution?
Using new technologies requires innovative thinking; the business models

that suit digital content are by nature different from those used by record
stores. 282 Currently, there are two leading online business models: pay-per-
download and subscription services. 283 Pay-per-download allows purchasing
single tracks, which makes this business model more attractive than buying
tangible media, such as CDs containing full albums. The subscription model
is based on a monthly fee, allows access to databases containing
copyrighted material and is likely to replace CD buying.
277
278
L. LESSIG: Free culture, Preface, at http://www.authorama.com/free-culture-1.html,
(2012-05-13)
279
280
Ibid., p.15; M. BOLDRIN & D. K. LEVINE: Against Intellectual Monopoly, p.150
281
M. BOLDRIN & D. K. LEVINE: Against Intellectual Monopoly, p.173
282
P. PEDLEY: Digital Copyright, p.2
283
60
When it comes to innovation, the conventional entertainment industry
(music and movies) still has a lot to learn from other (entertainment?)
industries, such as the porn branch. Technically and economically,
producing a pornographic movie is very similar to producing a “normal”
movie. Pornographic websites are quick to adopt new technologies, such as
video streaming, fee-based subscriptions, electronic billing and pop-up
advertisements. Due to such experimentation, the porn branch is one of the
most profitable online industries. 284
Of course, the copyright holders enjoy the freedom to conduct a business

(Article 16 of the Charter!) and thus should not be forced to take up a
certain business model. However, the Internet should definitely be seen as a
possibility, not as a threat, and copyright holders should dare to try new,
access-based business models. Copyright laws have to protect healthy
business models; copyright holders have to embrace the new technologies
and respond to consumer demand, instead of acting surprised each time their
works are made available for illegitimate file sharing. 285 As for the users,
there is one caveat: if a service collects money from its users, this does not
necessarily mean that the right holder will actually get the money; 286
therefore, it is important to check whether the source is legitimate.
I personally believe that new business solutions should be encouraged

because it is convenient, but mostly because of the contrast that the
availability of legitimate sources would create. The mere fact that the user
continues downloading illegal copies of copyrighted content that can be
obtained from a legitimate source for a reasonable price – the mere fact that
the user deliberately “steals” instead of buying – should be sufficient to
make it easier for the copyright holders to enforce their rights in cases of
infringement. 287 Nonetheless, I am aware that certain types of problems
might arise as a result of the introduction of new business models. For
instance, there might be some competition law concerns, especially when
collecting societies are involved. 288 However, such speculations are not
within the scope of this thesis.
5.3.2 DRM
Digital rights management (DRM) is another reasonable way to protect
copyright and is widely used by copyright holders all around the world.
There are two main types of DRM: 1) advisory, which means that the media
is labelled as protected and authorised players refuse to copy such protected
material; 2) encryption of content, meaning that only specific software can
unlock the encryption. Such encryption schemes are effective without legal
284
M. BOLDRIN & D. K. LEVINE: Against Intellectual Monopoly, pp.36-39
285
W. PATRY: How to fix copyright, pp.143-144
286
P. PEDLEY: Digital Copyright, p.46
287
Compare W. PATRY: How to fix copyright, p.143
288
Compare Case C-52/07 Kanal 5 Ltd and TV 4 AB vs. STIM; Commission Decision in
Case COMP/C2/38.698 – CISAC
61
enforcement; it is sufficient for the media companies to provide the
copyrighted material in a certain format. Encrypted material can also be
linked to a specific type of device, for instance, video games are often
linked to special consoles. 289
Some argue that DRM may hinder development, especially regarding

developing countries’ access to knowledge and information, as DRM is not
necessarily limited to copyrighted works but can be used to “lock” any
information. 290 Moreover, DRM also increases the power of copyright
holders: a “combination of a contract and technological protection measures
could represent a powerful mixture for fully automated system of secure
distribution, rights management, monitoring and payment for protected
content". 291 In a way, DRM could be seen as a de facto imposition of
“unilateral terms and conditions”, 292 which could undermine the rights of
consumers. For example, even when the consumers have the right to make
copies for private use, DRM will hinder them from doing so.
Limitation of private use is probably the most negative aspect of DRM, a

measure which otherwise is quite balanced with regard to the rights
involved. Even though the essence of DRM is to prevent copying, people
will always find their ways around technological protection. For example,
when you search DRM removal on Google, approximately
12 200 000 results are found. The ugly truth is that nobody (except for the
copyright holders) likes DRM. What else is out there?
5.3.3 Business combined with DRM

Some solutions contain mixed features, namely, a business model that
makes use of digital rights management. For example, Spotify offers a
digitally restricted streaming service for music. 293 Another player, iTunes,
operates on the basis of a proprietary DRM system “FairPlay”: it allows
single purchases of songs which can be accessed from a limited amount of
devices and can only be played using certain software. 294
Business models, possibly combined with a reasonable amount of DRM,

can help overcome digital piracy, but only if they are accessible to
consumers. In that regard, pricing and methods of payment play a huge role,
but interoperability is at least as important; the absence of interoperability
between the technological solutions can hamper the free circulation of
copyrighted works because consumers may be forced to choose content that
fits their devices. 295 For example, songs of The Beatles are not available on
289
M. BOLDRIN & D. K. LEVINE: Against Intellectual Monopoly, pp.115-116
290
Consumer Protection in a Comparative Analysis, page 91
291
Ibid., p. 102
292
Ibid.
293
http://ww.spotify.com (2012-05-16)
294
295
Ibid., p. 133
62
Spotify because of an exclusive digital distribution agreement with
iTunes, 296 and I personally find it a huge problem. Some other great artists
not available on Spotify are Pink Floyd, Led Zeppelin, and Metallica and
AC/DC, 297 and this fact alone serves to prove that no matter how accessible
and attractive some business solutions might be, none of them is perfect.
5.3.4 Taxation
In business, freedom of contract is the king, and yet sometimes might lead
to undesirable consequences; the copyrighted content might be unavailable
to a certain group of consumers if the copyright holder chooses a certain
channel to distribute the digital content. A solution to this problem could be
a more general measure, for example, a new tax in order to compensate for
the use of copyrighted material online.
Such a “file sharing tax” could be imposed on Internet services (especially

on high-speed Internet, since it allows faster file sharing). However, such a
measure has inherent flaws, which are quite obvious even without going
into the technicalities of taxation. Firstly, having access to high-speed
Internet does not automatically mean that the user will engage in
unauthorised file sharing. Secondly, due to the global nature of the Internet,
the measure is unfeasible; it would need to be applied globally in order to be
effective, which would require a new international agreement. Thirdly, it is
unclear how the funds would be redistributed to the copyright holders in
order to provide remuneration for the actual amount of downloads. A more
detailed analysis of this issue falls outside the scope of this thesis; however,
it can be concluded that a special file sharing tax is not likely to be
successful in practice, at least not in the nearest future.
5.3.5 Changing copyright

“Cultural and economic progress is the result of the free circulation
of ideas and knowledge. Continuing on the road of restrictions and
barriers, or to the indiscriminate use of technological protection
measures, is a return to anachronistic measures of the past, such as
what happened many years ago with the untenable ‘red flag act’
enacted to defend carriage industry at the advent of the first
automobiles”. 298
The “obsolescence and inappropriateness of the traditional intellectual

property regime” 299 has been emphasised by the digitalisation. At the early
stages of copyright development, uses of copyrighted works were divided
into “public” and “private“, and have remained that way ever since.
296
http://www.sltrib.com/sltrib/lifestyle/52305191-80/spotify-music-songs-service.html.csp
(2012-05-13)
297
http://www.spotify.com/us/help/faq/content/ (2012-05-16)
298
299
Ibid.
63
However, nowadays, due to digitalisation, the line has been blurred; “a
simple e-mail can reach more addressees than a theater in the eighteenth
century“. 300 New technologies have also made it more complicated to
maintain a balance “between the inherently contradictory interests of
intellectual property rights-holders and the general public.” 301
“Music is everybody’s possession. It’s only publishers who think they own
it”. 302 I found this quote online; purportedly, these are the words of John
Lennon, but you can never be too sure. Both the quote and the way it has
been circulating online reflect the beauty of sharing. Indeed, consumption is
the very heart of intellectual property, especially of copyright. Multiple uses
do not diminish it; on the contrary, “[o]nce a work is created, its intellectual
content is infinitely multipliable.” 303
New technologies have brought both freedom and chaos. Digitalisation has
decreased the production costs and given the copyright holders maximal
possibilities to share their works with the world. 304 However, the same
technologies have facilitated for illegal file sharing and deprived them of the
exclusivity of this right. In 2010, more than 60% of Internet traffic
consisted of consumers sharing music, movies, books, and games. 305
Considering the duration of copyright protection, it is highly likely that most
of that sharing constituted copyright infringement, an act that impairs the
very substance of the right to intellectual property. Does that mean that the
Information society is actually a society of thieves?
Freedom of expression and information, protection of personal data, and

some freedom to conduct a business: this is what it takes to eliminate illegal
file sharing. The very substance of those rights would need to be impaired in
order to effectively prevent infringements, given the current scope of
copyright protection. Alternatively, we could do something more
constructive instead of repeatedly attempting to divide by zero. Instead of
constant struggling and unsuccessful balancing, we could just change the
essence of copyright, so that a significantly smaller portion of file sharing
would count as infringement.
According to various studies, piracy and music sales are largely

unrelated. 306 Neither is there any evidence that that file sharing has
discouraged the production of artistic works; the number of new records has
more than doubled since 2000. 307 When music becomes available for free,
the price of concerts is likely to rise, which leads to a complementary source
300
R.M. HILTY & S. NÉRISSON: “The Balance of Copyright”, p.355
301
Consumer Protection in a Comparative Analysis, p. 135
302
http://www.brainyquote.com/quotes/quotes/j/johnlennon167341.html (2012-03-26)
303
M. BOLDRIN & D. K. LEVINE: Against Intellectual Monopoly, p.177
304
F. OBERHOLZER & K. STRUMPF: “File Sharing and Copyright”, p.50
305
Ibid., p. 19
306
Ibid., p. 49
307
Ibid., p. 50
64
of revenue, or at least helps ensure that the artists do not suffer if the sales of
records decline. 308
Furthermore, copyright protection is not, and has never been the main basis
for creativity. For instance, Shakespeare created without copyright laws,
because the first legislative act that resembles the modern form of copyright
was the Statute of Anne, was adopted in England in 1710. 309 Should
Shakespeare be seen as an exception rather than the rule? Not at all. For
example, copyright was not used for musical works until the end of the
eighteenth century, and yet a great deal of classical music was produced
without copyright protection. 310
Copyright, by nature, is different from other intellectual property rights;

firstly, it originates automatically as soon as a work is created, and secondly,
the term of copyright protection (in the EU, it is 70 years post mortem
auctoris, pursuant to the Duration Directive 311) is much longer than the term
of protection of other intellectual property rights. The excessive length of
copyright protection denies access to culture 312, but also does not affect the
incentive to create. It might result in additional benefits in the distant future,
but has a very low present economic value. 313 Even “[m]aking copyright
perpetual would increase author’s compensation by at most 0.12 percent,
and these figures are unrealistically high, since the vast majority of works
lose value after a short period of time.” 314
A regime that provides for an excessively long term of protection has no

social benefit; consumers are forced to pay monopoly prices for over 100
years, while their rights to access and use are restricted; moreover, a large
amount of works are no longer available from the legitimate sources but still
copyrighted, which limits access to culture even more. 315 Therefore, it
would only be beneficial for the society to decrease the term of copyright
protection. Since a shorter term would mean that more works would fall into
the public domain, the amount of infringements would also decrease. At the
same time, the contrast between copyrighted and non-copyrighted works
would become more apparent. In terms of balancing, it would become more
acceptable to restrict other rights in order to protect copyright.
Being completely unbiased towards either large record companies or online

pirates, I am reluctant to accept the current state of law protecting
intellectual property rights because it does not seem to serve the needs of the
Information society. The strong copyright protection is favourable for the
right holders, however, it is not always enforceable due to the need to
308
Ibid., pp.23, 44-45
309
M. BOLDRIN & D. K. LEVINE: Against Intellectual Monopoly, p. 30
310
Ibid., p. 187
311
Directive 2006/116/EC of the European Parliament and of the Council on the term of
protection of copyright and certain related rights
312
W. PATRY: How to fix copyright, pp.190-195
313
Ibid., pp.199-200
314
Ibid., p.200
315
Ibid., p.201
65
protect the interests of Internet users and ISPs. Changing the essence of
copyright is a measure that is the most likely to result in a fair balance
between copyright and other fundamental rights – provided that the
mechanisms of international law, which copyright protection is based on,
allow such radical changes. However, recent development, including the
ACTA 316, implies a strong preference towards measures that strengthen the
protection of intellectual property rights. This leads to the conclusion that it
would take a while before drastic legislative changes can made.
316
http://register.consilium.europa.eu/pdf/en/11/st12/st12196.en11.pdf (2012-05-16)
66
6 Conclusions
Right now, the Information society is standing in a crossroad; it has been
standing there for quite a while, taking a leap back and forth every now and
then. It cannot stay there for ages; eventually, it will have to choose one
path. It is hard to say which one is the right one, but one thing is clear: it is
too late to turn around and go back. Digitalisation and the Internet have
done their job, and now it is the Information society’s time to react and
actually embrace the future; or the present, because the future is now.
As Lawrence Lessig expressed in “Free culture”, it is necessary to use some

common sense and decide how to respond to the changes; however, instead,
we are “allowing those most threatened by the changes to use their power to
change the law – and more importantly, to use their power to change
something fundamental about who we have always been”. 317
In the war against piracy, striking a fair balance between fundamental rights
is not an easy task. The reality of particular relations has to be recognised
over “abstract metaphysical concepts“; 318 balancing might be a great slogan,
but applying it blindly will lead us back to where we started; at a total
conflict of rights. A balance will never be achieved if the very substance of
a right needs to be impaired in order to protect other rights.
In a way, balancing of copyright and other fundamental rights resembles a

mathematical equation, where the rights are variables. The situation
becomes even more complicated when the rights of the infringers and the
rights of those who have not engaged in infringing activities are treated as a
“lump sum”; suddenly, it becomes unclear what value could be assigned to
the “variables” of the right to protection of personal data and the freedom of
information. In a way, this balancing is also a give-and-take kind of
approach: when a balance between copyright and other fundamental rights
cannot be achieved by purely legal means, sometimes the only solution
could be to find a compromise, such as a business model that would equally
respect all the rights involved.
A completely different perspective is also possible; instead of looking for a

solution to the problem, the straightest way to a fair balance could be to
attack the very core of it and to eliminate the very reasons for the problem.
Efficient changes presuppose a radical approach: “[r]evolution will not just
happen. It must be made to happen.” 319 In the case of illegal file sharing,
this would mean changing the substance of copyright in order to decrease
the amount of situations in which a clash of fundamental rights occurs. The
contrast created by distinguishing copyrighted and non-copyrighted works
317
L. LESSIG: Free culture, Introduction, at http://www.authorama.com/free-culture-2.html
(2012-05-16)
318
I. WARD: Introduction to Critical Legal Theory p. 168
319
Ibid., p. 147
67
would also give a more solid basis for a case-by-case assessment when the
copyright holder decides to hold the infringer responsible.
Personally, I am unwilling to accept the current state of law protecting

intellectual property rights because it does not seem to serve the needs of the
Information society. Without openness, justice would become stabilised by
the “force of law”: 320 it seems that this has happened to intellectual property
law. Intellectual property law, more than any other kind of law, is
inseparable from innovation, and should be allowed to develop accordingly.
It should embrace the openness, the potential of change, and “maintain the
possibility of freedom”. 321 The violent hierarchy between the fundamental
rights should be overturned; in a fully functioning Information society, there
should not be any need to balance intellectual property rights with other
fundamental rights. Only then can we avoid accidental dividing by zero;
only then can we claim that we live in an actual Information society.
Until then, I believe in business models. As William Patry suggested in his

book “How to fix copyright”: “[i]n a healthy market, copyright owners
make their works available in formats and at prices consumers desire.
Consumers then pay copyright owners money and everyone wins.” 322 If
such a healthy market existed, I would not need to go to youtube.com in
order to listen to Pink Floyd (50 times for the past three weeks…). If such a
healthy market existed, my friends would not need to look over their
shoulders each time they want to download a new episode of a popular TV
series. If such a healthy market existed, the war against piracy would end, or
at least start focusing on combating real “pirates”, such as those that upload
leaked albums or movies weeks before their official release. However,
remembering the “stone age” of file sharing and comparing it with the
current situation, I am sure that we are on the right track.
320
I. WARD: Introduction to Critical Legal Theory, pp. 168-169
321
Ibid., p.169
322
W. PATRY: How to fix copyright, p.143
68
Bibliography
Books
L. BENTLY AND B. SHERMAN: Intellectual Property Law, 3rd edition, Oxford
University Press, 2009
M. BOLDRIN & D. K. LEVINE: Against Intellectual Monopoly, Cambridge

University Press, 2008
D. CHALMERS, G. DAVIES & G. MONTI: European Union Law, 2nd edition,

Cambridge University Press, 2010
X. GROUSSOT: General Principles of Community Law, Europa Law

Publishing, Groningen 2006
B. LEHRBERG: Praktisk Juridisk Metod, 6th edition, I.B.A. Institutet för

Bank- och Affärsjuridik AB, Uppsala, 2010
L. LESSIG: Free culture, electronic copy available at

http://www.authorama.com/free-culture-1.html (2012-04-27)
N. LUCCHI: Digital Media & Intellectual Property/ Management of Rights

and Consumer Protection in a Comparative Analysis, Springer-Verlag
Berlin Heidelberg 2006
G. MAZZIOTTI: EU digital copyright law and the end-user, Berlin, Springer

2008
W. PATRY: How to fix copyright, Oxford University Press, 2011
P. PEDLEY: Digital Copyright, 2nd edition, Facet publishing, 2007
A. ROSAS & L. ARMATI: EU Constitutional Law: An Introduction, Hart

Publishing, Oxford, 2010
A. RYDELL & S. SUNDBERG: Piraterna. Historien om The Pirate Bay,

Piratpartiet och Piratbyrån, Ordfront, Stockholm, 2010
S.I. STRONG: How to write law essays and exams, Oxford University Press,
2nd edition, 2006
T. TRIDIMAS: The general principles of EU law, Oxford University Press,

New York, 2006
I. WARD: Introduction to Critical Legal Theory, Cavendish Publishing

Limited, 2nd edition, 2004
69
Articles
R. ALEXY: “Balancing, constitutional review, and representation“,
International Journal of Constitutional Law, 10/2005, Volume 3, Issue 4, pp.
572 - 581
I. BROWN: “Internet censorship: be careful what you ask for“, Electronic

copy available at http://ssrn.com/abstract=1026597 (2012-03-26)
J. DERRIDA: “Interview with Jean-Louis Houdebine and Guy Scarpetta” in

“Positions”, The University of Chicago Press, 1981, pp. 41-44
J. DERRIDA: “Letter to A Japanese Friend”, in D. WOOD & R. BERNASCONI

(eds.): “Derrida and Différance”. Electronic copy available at
http://books.google.se/books?id=kHFkwQOBjPYC&redir_esc=y (2012-03-
26)
J. DERRIDA: “The Force of Law: the mythical foundations of authority”, 11

Cardozo L Rev 921, 1990
J. DERRIDA: “The time of a thesis: punctuations”, in ALAN MONTEFIORE

(ed.): Philosophy in France Today, Cambridge: Cambridge UP, pp. 34-50
C. GEIGER:”Intellectual property shall be protected!? Article 17(2) of the

Charter of Fundamental Rights of the European Union: a mysterious
provision with an unclear scope”, E.I.P.R. 2009, 31(3), pp. 113-117
J. GINSBURG: “From having copies to experiencing works”, 50 J. Copyright

Soc'y U.S.A. 113 2002-2003
X. GROUSSOT, “Rock the KaZaA: Another Clash of Fundamental Rights”,

CMLRev. 45: pp. 1745-1766, 2008
R. M. HILTY & S. NÉRISSON: ”The Balance of Copyright“, Chapter 16 (pp.

355-392) in K.B. BROWN & D.V. SNYDER (eds.), General Reports of the
XVIIIth Congress of the International Academy of Comparative
Law/Rapports Généraux du XVIIIème Congrès de l’Académie
Internationale de Droit Comparé, Springer Science + Business Media, 2012
M. LEISTNER: “Copyright law in the EC: status quo, recent case law and
policy perspectives”, CMLRev. 46: pp. 847-884, 2009
C.MANARA: “Block the Filtering! A Critical Approach to the SABAM

Cases”. Electronic copy available at: http://ssrn.com/abstract=1954760
(2012-03-26)
70
F. OBERHOLZER & K. STRUMPF: “File Sharing and Copyright”, Innovation
Policy and the Economy, Volume 10, University of Chicago Press, 2010.
Electronic copy available at http://www.nber.org/chapters/c11764 (2012-
04-27)
A. J. CERDA SILVA: “Enforcing Intellectual Property Rights by Diminishing

Privacy: How the Anti-Counterfeiting Trade Agreement Jeopardizes the
Right to Privacy”, 26 Am. U. Int'l L. Rev. 601 2010-2011
K. WEATHERALL: “ACTA as a new kind of international IP lawmaking”, 26

Am. U. Int'l L. Rev. 839 2010-2011
E. WERKERS & F. COUDERT: “The Fight Against Piracy in Peer-to-Peer

Networks: the Sword of Damocles Hanging over ISP’s Head?“, pp. 339-347
in G.A. PAPADOPOULOS ET AL. (eds.), Information Systems Development:
towards a service provision society, Springer Science+Business Media,
LLC 2009
Websites
https://www.accessnow.org/policy-activism/press-blog/acta-protest-feb-11
(2012-05-15)
http://anonymous.pysia.info/ (2012-05-15)
http://arstechnica.com/tech-policy/news/2008/01/swedish-prosecutors-
dump-4000-legal-docs-on-the-pirate-bay.ars (2012-05-15)
http://www.bof.nl/2004/10/13/providers-verwijderen-tekst-multatuli/ (2012-
05-15)
http://www.brainyquote.com/quotes/quotes/j/johnlennon167341.html (2012-
03-26)
http://bredband.bahnhof.se/extra-services/anonym-pa-internet (2012-05-14)
http://edition.cnn.com/2009/TECH/10/15/finland.internet.rights/(2012-05-
13)
http://en.wikipedia.org/wiki/Division_by_zero (2012-05-19)
http://en.wikipedia.org/wiki/Kazaa (2012-03-26)
http://www.ifpi.org/content/library/DMR2011.pdf (2012-05-13)
http://ipjustice.org/wp/campaigns/acta/ (2012-05-15)
http://mathforum.org/dr.math/faq/faq.divideby0.html (2012-05-19)
71
http://www.petitiononline.com/stopacta/petition.html (2012-05-15)
http://register.consilium.europa.eu/pdf/en/11/st12/st12196.en11.pdf (2012-
05-16)
http://www.sltrib.com/sltrib/lifestyle/52305191-80/spotify-music-songs-
service.html.csp (2012-05-13)
http://www.spotify.com (2012-05-16)
http://www.spotify.com/us/help/faq/content/ (2012-05-16)
http://www.swedishwire.com/business/13682-pirate-bay-blocked-in-uk-
after-high-court-rule (2012-05-07)
http://techland.time.com/2012/05/01/british-court-orders-isps-to-block-
pirate-bay-is-the-u-s-next/ (2012-05-14)
http://torrentfreak.com/5-ways-to-download-torrents-anonymously-100819/
(2012-05-07)
http://www.ultimate-
guitar.com/news/industry_news/pirate_bay_officially_blocked_in_uk.html
(2012-05-07)
http://whatismyipaddress.com/hide-ip (2012-05-07)
http://www.wired.co.uk/news/archive/2012-01/26/eu-signs-up-to-acta
(2012-05-15)
http://www.youtube.com/watch?v=8XoFGApjhFE (2012-05-15)
http://www.youtube.com/watch?v=HmZm8vNHBSU (2012-05-08)
http://www.youtube.com/watch?v=swAs0v7u4Vk (2012-05-19)
Legislation
Consolidated version of the Treaty on the European Union (“TEU”), OJ
2008 C 115/13, 9 May 2008
Charter of Fundamental Rights of the European Union (2010/C 83/02), OJ

2007 C303/01, 30 March 2010
European Convention for the protection of Human Rights and Fundamental

Freedoms of 4 November 1950
72
Agreement on Trade-Related Aspects of Intellectual Property Rights
(“TRIPS”), 15 April 1994, OJ 1994 L 336, p. 1
Anti-counterfeiting Trade Agreement (“ACTA”), 1 October 2011 (not yet in

force)
Secondary legislation
Directive 95/46/EC 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 L281 p.31 (“Personal Data
Protection Directive”)
Directive 2000/31/EC of the European Parliament and of the Council on

certain legal aspects of information society services, in particular electronic
commerce, in the Internal Market, OJ 2000 L178 p.1 (“E-commerce
Directive”)
Directive 2001/29/EC of the European Parliament and the Council on the

harmonisation of certain aspects of copyright and related rights in the
information society, OJ 2001 L 167 p.10 (“InfoSoc Directive”)
Directive 2002/58/EC of the European Parliament and of the Council

concerning the processing of personal data and the protection of privacy in
the electronic communications sector , OJ 2002 L 201/37, p.37 (“E-privacy
Directive“)
Directive 2004/48/EC of the European Parliament and of the Council on the

enforcement of intellectual property rights, OJ 2004 L157, p.45 (“IPRED”)
Directive 2006/116/EC of the European Parliament and of the Council on

the term of protection of copyright and certain related rights, OJ L 372, p.12
(“Duration Directive”)
Other EU documents
Explanations relating to the Charter of Fundamental Rights, OJ 2007 C 303
p.17
Commission Decision in Case COMP/C2/38.698 – CISAC
73
Table of Cases
Court of Justice of the European Union
Case 4/73 Nold [1974] ECR 491
Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral [1976] ECR 1989
Case 230/78 SpA Eridiana and others [1979] ECR 2749
Case 19/84 Pharmon v Hoechst [1985] ECR 2281
Case 158/86 Warner Brothers [1988] ECR 2605
Case 5/88 Wachauf [1989] ECR 2609
Case C-10/89 HAG GF [1990] ECR I-3711
Case C-177/90 Kühn [1992] ECR I-35
Case C-280/93 Germany v. Council [1994] ECR I-5039
Case C-22/94 The Irish Farmers' Association and Others[1997] ECR I-1809
Case C-55/94 Gebhard [1995] ECR I-4165
Case C-200/96 Metronome Musik [1998] ECR I-01953
Case C-61/97 Laserdisken [1998] ECR I-5171
Case C-240/97 Spain v Commission [1999] ECR I-6571
Joined Cases C-300/98 and C-392/98 Dior and Others [2000] ECR I-11307
Case C-112/00 Schmidberger [2003] ECR I-5659
Case C-13/01 Safalero Srl v Prefetto di Genova [2003] ECR I-8679
Case C-243/01 Criminal proceedings against Piergiorgio Gambelli and

Others [2003] ECR I-13031
Case C-101/01 Lindqvist [2003] ECR I-12971
Case C-36/02 Omega Spielhallen [2004] ECR I-2609
Case C-320/03 Commission v Austria [2006] ECR I-00157
74
Case C-347/03 Regione autonoma Friuli-Venezia Giulia and ERSA [2005]
ECR I-3785
Joined Cases C-154/04 and C-155/04 Alliance for Natural Health and
Case C-305/05 Ordre des barreaux francophones et germanophone and

Case C-341/05 Laval [2007] ECR I-11767
Joined cases C-402/05 P & C-415/05 P Kadi [2008] ECR I-6351
Case C-438/05 Viking Line [2007] ECR I-10779
Case C-431/05 Merck Genéricos & Produtos Farmacêuticos [2007] ECR I-

7001
Case C-432/05 Unibet [2007] ECR I-2271
Case C-268/06 Impact [2008] ECR I-2483
Case C-275/06 Promusicae [2008] ECR I-271
Case C-52/07 Kanal 5 Ltd and TV 4 AB vs. STIM [2008] ECR I-09275
Case C-73/07 Satamedia [2008] ECR I-9831
Case C-169/07 Hartlauer [2009] ECR I-1721
Joined Cases C-171/07 and C-172/07 Apothekerkammer des Saarlandes and

Case C-265/07 Caffaro [2008] ECR I-07085
Court order in C-557/07 Tele2 v. LSG [2009] ECR I-01227
Case C-5/08 Infopaq [2009] ECR I-6569
Case C-467/08 Padawan [2010] n.y.r.
Case C-28/09 Commission v. Austria [2011] n.y.r.
Case C-137/09 Josemans [2010] n.y.r.
Case C-279/09 DEB [2010] n.y.r.
Case C-324/09 L‘Oréal and Others [2011] n.y.r.
75
Case C-462/09 Stichting de Thuiskopie [2011] n.y.r.
Case C-70/10 Scarlet Extended [2011] n.y.r.
Case C-163/10 Criminal proceedings against Aldo Patriciello [2011] n.y.r.
Case C-277/10 Martin Luksan v. Petrus van der Let [2012] n.y.r.
Case C-360/10 SABAM v. Netlog [2012] n.y.r.
Case C-461/10 Bonnier [2012] n.y.r.
Case C-1/11 Interseroh [2012] n.y.r.
Opinions of Advocates General

Opinion of Mr Advocate General Mischo delivered on 8 March 1990 in
Case C-331/88 ex parte Fedesa [1990] ECR I-4023
Opinion of Mr Advocate General Gulmann delivered on 1 June 1994 in

Joined cases C-241/91 P and C-242/91 P RTE and ITP [1995] ECR I-743
Opinion of Advocate General Sharpston delivered on 25 October 2007 in

Case C-450/06 Varec [2008] ECR I-581
Opinion of Mr Advocate General Jääskinen delivered on 9 June 2011 in

Case C-163/10 Criminal proceedings against Aldo Patriciello [2011] n.y.r.
General Court
Case T-385/07 FIFA [2011] n.y.r.
Case T-68/08 FIFA [2011] n.y.r.
European Court of Human Rights

Applications Nos. 25088/94, 28331/95 and 28443/95, Chassagnou and
others v. France, Judgment of 29 April 1999
Application No.45036/98, Bosphorus v. Ireland, Judgment of 30 June 2005
Application No. 19247/03, Balan v Moldova, Judgment of 29 January 2008
Case law from the US

UMG Recordings, Inc. v. Mp3.Com, 92 Federal Supplement 2d 349, p.351
(S.D.N.Y. 2000)
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FACULTY OF LAW

A “fair balance” between

Supervisor: Professor Xavier Groussot

Master Programme in European Business Law

3 PART II: CASE LAW 22

4 PART III: BALANCING – THE PIECES 34

5 PART IV: STRIKING A FAIR BALANCE – HOW TO SOLVE

Finally, the very core of the file sharing problem is examined. It is

Digitaliseringen har har skapat nya möjligheter för upphovsrättsinnehavare

I den här avhandlingen har olika aspekter av balansering diskuterats. Baserat

De praktiska möjligheterna att uppnå en korrekt balans diskuteras och olika

Slutligen argumenteras det att den nuvarande upphovsrättslagstiftningen inte

Lund, May 2012

ChFR Charter of Fundamental Rights of the European

CJEU Court of Justice of the European Union

DRM Digital rights management

ECHR European Convention on Human Rights and

ECtHR European Court of Human Rights

ISP Internet service provider

IPRED Directive on the enforcement of intellectual

n.y.r. Not yet reported

TEU Treaty on European Union

TRIPS Agreement on Trade-Related Aspects of

Of course, a homemade collection of music would never replace an album;

3) Digital media can be easily modified and manipulated until it becomes

4) Copyrighted works in a digital form are less differentiated by type

5) Digital media is very compact; complex data can be stored in a small

6) Digital media is “non-linear”: it is connected with the potential to create

Digitalisation has without a doubt made culture more accessible, however, it

A well-known social advertisement against piracy says, “You wouldn’t steal

Digital copying, on the contrary, can be seen as an act of multiplying the

The transition from tangible media to digital media is not as smooth as it

Balancing is a great slogan. 12 Indeed, in the perfect case scenario, an

Concerning constitutional issues, the most useful source was Xavier

Regarding intellectual property law, I got most of the inspiration from

Jacques Derrida 28 described deconstruction as “an unclosed, unenclosable,

“Our lives change, and so do our values, as individuals and as

The outline of this thesis is based on a method that can be abbreviated as

Evaluation comprises the application of the law; in other words, having

Thirdly, the focus is on civil proceedings and not on criminal procedures

Fourthly, this thesis is based on an EU perspective. Even though I will

Finally, I will focus on the legal implications of recent case law

The legislation seems to be clear; however, when applied in practice, it can

The third part of the thesis encompasses a discussion of the actual

2.1 EU: primary law

As stated in paragraphs 62 to 68 of Promusicae, a balance has to be struck

The protection of the right to intellectual property is enshrined in Article

The intermediaries enjoy the freedom to conduct a business (as defined in

Pursuant to Article 41, Members shall ensure that enforcement procedures

Article 42 obliges Members to make available to right holders civil judicial

These provisions require the effective protection of intellectual property

2.3 EU: secondary law

2.3.1 Copyright in the Information society:

According to Article 2 of the InfoSoc Directive, Member States shall

Pursuant to Article 8, Member States shall provide “appropriate sanctions

2.3.2 Enforcement of copyright: IPRED

Article 8 creates the obligation to ensure that information about the

Article 18 provides an obligation for the Member States to ensure that

2.3.4 The Internet users: Personal Data