The Court of Justice of the European Union (CJEU) has explained what consequences may face the free wireless internet connection providers when copyright infringements are committed through this type of access.
The CJEU held that copyright holder may not claim damages from the free wireless internet connection provider for copyright infringement or expenses related to making such claim, however the persons whose interests were infringed may request for injunction against an internet service provider that requires it to install technical measures to secure prohibition for free wireless internet connection users to make a particular copyright-protected work or part thereof available for electronic retrieval from an online (peer-to-peer) exchange platform.
Moreover, the CJEU concluded that one may claim from the free wireless internet connection provider the reimbursement of the costs of giving formal notice and court costs incurred in a claim which is aimed at obtaining the court order to terminate the infringement.
What does this CJEU ruling actually mean?
For example, a work is unlawfully shared in an online exchange platform and it is downloaded by millions of users without paying any fee to a copyright holder. The copyright holder suffers damage since he receives no income for the use of the copyrighted work which he would have received if the copyright was not infringed. However, the person whose rights were infringed will be entitled to claim compensation for damages only from the infringer and not from the free wireless internet connection provider.
The free wireless internet connection provider would have to compensate only the damage related to implementation of the claim to terminate an infringement, such as legal assistance costs when lodging an official claim or an action concerning termination of an infringement, stamp duty, expert costs and other litigation costs.
This CJEU ruling does not oblige all free wireless internet connection providers to restrict access to the free connection with a password, mandatory user registration, or to control a content which is transmitted through communication network. However, the free wireless internet connection providers must know that upon request of the person whose rights have been infringed and in the event of a particular continuous copyright infringement they will have a duty to apply such measures and compensate the expenditure related to implementation of such claim.
Keeping yourself safe from a claim
To keep oneself safe from the claims one may use mandatory registration of network users and technical measures to protect IP addresses and external links through which the registered user obtain an internet access. However, upon application of such measures the purpose of the free wireless internet connection would become deprived of its meaning. Quite often a free and anonymous internet access is used as a marketing tool which helps a company to attract attention of neighbouring shop customers, passers-by and neighbours. Therefore the business should consider and assess the benefit of granting a free wireless internet connection access and possible risk of claims.
By Asta Macijauskienė, GLIMSTEDT Senior Associate, Attorney-at-Law