The advocate general of the European Court of Justice has advised the court that the owners of shops, hotels or bars providing free Wi-Fi for the public should not be liable for copyright infringements committed by users.
It follows a case concerning Tobias McFadden, who operates a business selling and renting sound systems, and which also offers public Wi-Fi access. A regional court in Munich ruled that he was ‘indirectly liable’ after music became unlawfully available for downloading in 2010 via that internet connection.
But in an opinion, which is likely to signal the line the European court will take, advocate general Maciej Szpunar said those who provide free Wi-Fi access as a supplement to their main business activities should have limited liability over unlawful acts committed by a third party.
He said this limitation would preclude them from orders for payments of damagers, or to pay costs relating to copyright infringements covered by third parties.
But he said that the limitation would not shield providers from injunctions, which if they did not comply with they could be fined for.
But he said that injunctions would have to be effective, aimed at bringing a specific infringement to an end, and must fairly balance between rights of freedom of expression and freedom to conduct business with intellectual property rights.
Szpunar also said that the injunction should not be issued if the only way to comply with it would be by ending the connection, password protecting it, or monitoring all communications transmitted through it.
He said: ‘Any general obligation to make access to a Wi-Fi network secure, as a means of protecting copyright on the internet, could be a disadvantage to society as a whole and one that could outweigh the potential benefits for rights holders.'
A final judgment by the Court of Justice of the European Union will be delivered at a later date.