New CJEU referral on right of communication to the public … this time on seeding and de minimis threshold

http://ipkitten.blogspot.com/2019/09/new-cjeu-referral-on-right-of.html

A different type of ‘seeding’ …
The IPKat has just learned that a new referral on, inter alia, the interpretation of Article 3(1) of the InfoSoc Directive has just been made to the Court of Justice of the European Union in relation to ‘seeding’. 

First of all: what is ‘seeding’? As explained by the relevant Wikipedia entry,

In computing and specifically peer-to-peer file sharing, seeding is the uploading of already downloaded content for others to download from. A peer, a computer that is connected to the network, becomes a seed when having acquired the entire set of data it tries to download. This data consists of small parts so that seeds can effectively share their content with other peers, handing out the missing pieces. A peer deliberately chooses to become a seed by leaving the upload task active when content is downloaded. This means that there should be motivation to seed. The opposite of a seed is a leech, a peer that downloads more than they upload.

The case is C-597/19. The questions referred are not yet available on the Curia website, but can be read on the website of the UK Intellectual Property Office:

1(a) Can the downloading of a file via a peer-to-peer network and the simultaneous provision for uploading of parts (‘pieces’) thereof (which may be very fragmentary as compared to the whole) (‘seeding’) be regarded as a communication to the public within the meaning of Article 3(1) of Directive 2001/29, even if the individual pieces as such are unusable? If so,
(b) is there a de minimis threshold above which the seeding of those pieces would constitute a communication to the public?
(c) is the fact that seeding can take place automatically (as a result of the torrent client’s settings), and thus without the user’s knowledge, relevant?
2(a) Can a person who is the contractual holder of the copyright (or related rights), but does not himself exploit those rights and merely claims damages from alleged infringers – and whose economic business model thus depends on the existence of piracy, not on combating it – enjoy the same rights as those conferred by Chapter II of Directive 2004/48 on authors or licence holders who do exploit copyright in the normal way?
(b) How can the licence holder in that case have suffered ‘prejudice’ (within the meaning of Article 13 of Directive 2004/48) as a result of the infringement?
Are the specific circumstances set out in questions 1 and 2 relevant when assessing the correct balance to be struck between, on the one hand, the enforcement of intellectual property rights and, on the other, the rights and freedoms safeguarded by the Charter, such as respect for private life and protection of personal data, in particular in the context of the assessment of proportionality?
Is, in all those circumstances, the systematic registration and general further processing of the IP-addresses of a ‘swarm’ of ‘seeders’ (by the licence holder himself, and by a third party on his behalf) legitimate under the General Data Protection Regulation, and specifically under Article 6(1)(f) thereof?

…. that Kats do appreciate!
As readers know, the CJEU has already clarified that, for there to be an act of communication to the public, what is required is (1) an act of communication to (2) a public. In addition, other interdependent, non-autonomous criteria might also come into consideration depending on the context, eg whether the defendant pursues a profit-making intention in linking cases.
However, the question whether, besides all this, there is also a de minimis threshold that needs to be passed in relation to what is actually communicated is an interesting one. Unlike the right of reproduction in Article 2 of the InfoSoc Directive, in fact, Article 3(1) does not refer to the communication of a work “in whole or in part”. Hence, it may not be readily apparent whether there can be a communication also when what is being communicated is not a ‘work’ as a whole, but rather ‘individual pieces’ which are unusable.
All this said, what seems required to answer the question is – once again – consideration of what is meant by ‘work’. The CJEU recently clarified that in its rulings in Levola Hengelo [here] and Cofemel [here]: for there to be a ‘work’, “the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form”.
It would appear that the fact that the fact the individual pieces are unusable does not necessarily imply that they cannot be protected, if they are a ‘work’ as defined above (and are sufficiently ‘original’). 
However, in a recent case – Pelham – concerning the right of reproduction of phonogram producers, the CJEU adopted an (odd) distinction [see here] between samples recognizable to the ear (which the right of reproduction would cover) and samples unrecognizable to the ear (which the right of reproduction would not cover). The Court did not clarify how such recognizability is to be assessed and from the perspective of whom. 
All in all, this referral appears an important one to watch, also considering:
  • the technological implications (what is relevant: is it the process as a whole, or rather its individual parts?)
  • the question relating to the GDPR
  • issues of proportionality and fundamental rights

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