KKO:2022:47 – Disclosure of Internet subscriber information

Background and issues at hand

Company B had demanded that Internet Service Provider A be ordered, under section 60a of the Copyright Act, to disclose to B the subscriber information pertaining to 34 accounts specified by way of IP addresses, as these accounts had been used to make copyrighted material available to the public without authorisation and to an extent that was significant in terms of copyright protection.

The evidence presented by B indicated that each account had been used to make one of four motion picture works available to the public, using BitTorrent technology.

The Market Court had ordered A to disclose the subscriber (user/customer) information regarding five of the accounts and dismissed the rest of the application. Both A and B had appealed to the Supreme Court.

The issues at hand before the Supreme Court were whether copyrighted material had been made available to the public to an extent that was significant in terms of copyright protection, as referred to in section 60a(1) of the Copyright Act, and whether the legislation governing the processing of personal data and the protection of privacy precluded an order of disclosure of subscriber information by A to B.

The law

According to section 60a(1) of the Copyright Act, the author or the representative of the author has the right, notwithstanding the provisions governing secrecy and access to information, to apply for a specific court order that the operator of a transmitter, server or other similar device or other service provider acting as an intermediary must disclose to the applicant the subscriber information relating to an account that is being used to make copyrighted material available to the public without authorisation and to an extent that is significant in terms of copyright protection.

Relevant EU legislation appears in Directives 2001/29/EC, 2002/58/EC, and 2004/48/EC, as well as in Regulation 2016/679. The Supreme Court discussed also relevant case-law of the Court of Justice of the European Union (e.g. M.I.C.M., C-597/19, Bonnier Audio, C-461/10, and Promusicae, C-275/06).

No referral for a preliminary ruling

A had submitted that the Supreme Court should refer the case to the Court of Justice of the European Union for a preliminary ruling on the issue whether section 60a of the Copyright Act complies with EU law. The Supreme Court noted that, most recently, the Court of Justice of the European Union had in the M.I.C.M. case affirmed its earlier stance, taken in the Promusicae case, that EU law does not preclude domestic legislation that is materially similar to section 60a of the Copyright Act. The General Data Protection Regulation contains a specific mention, absent from the earlier Data Protection Directive, that the enforcement of civil claims is a valid ground for restricting rights based on the GDPR.

Hence, it was clear on the basis of earlier case-law of the Court of Justice of the European Union that EU law does not preclude domestic legislation on the disclosure of subscriber information, such as that in section 60a of the Copyright Act. There was no reason to disregard section 60a of the Copyright Act by reference to the primacy of EU law, nor to refer the case for a preliminary ruling.

Reasons

The Supreme Court noted that the criteria for an order for the disclosure of subscriber information are met only where material is being made available to the public to an extent that is significant in terms of copyright protection. In the assessment of significance, special attention was to be paid to how extensively the material had been made available. Note could also be taken of the nature of the material and the conduct of the user of the relevant account.

In the assessment of the extent of availability, consideration was to be given to the quantity of the works that had been made available and the duration of availability. The nature of the copyrighted material was to be assessed by reference to the financial impact on the copyright holder or the representative. Typically, this impact turned on what kind of work was involved and what kind of effect the copyright violation had on the relevant profit prospects. As regards the conduct of the user, relevant circumstances included the method used and the knowledge of the user on the nature and extent of the availability of the material.

The Supreme Court held that, in the assessment of the extent of the availability of copyrighted material to the public especially in view of the probability of potential users, the nature of the material, and the circumstances of the conduct of the account user, material had been made available to the public to an extent that was significant in terms of copyright protection from each of the IP addresses referred to in the application.

Even though the careful evaluation of restrictions to the protection of privacy was necessary in a case such as the present one, the disclosure pertained only to the contact information of the users and customers of the IP addresses, which do not normally serve as a basis for detailed analysis of their personal circumstances even in a situation where the copyright holder knows of the contents of the relevant use of service. This was not to be considered a very noteworthy incursion into the privacy of the subscribers. Accordingly, disclosure was a proper means to achieve the objective of balancing the information interests of B as a copyright holder and the privacy interests of the subscribers, including their interest in data protection. For this reason, also the principle of proportionality was not violated by an order of disclosure.‍