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Internet service providers can be ordered to block access to websites infringing copyright


The European Court of Justice has ruled that an internet service provider (ISP) can be ordered to block websites that infringe copyright.  However, the ECJ clarified that such measures should comply with EU fundamental rights, notably the right to conduct a business and the right to information. The ECJ considered that an injunction which left it to the ISP to determine the most effective means to block the infringing website did not infringe fundamental rights.

Background

Constantin Film and Wega which hold the rights to films such as “Pandorum” became aware that their films could be viewed or even downloaded from a website (www.kino.to) without their consent.  At their request, the Austrian courts imposed an injunction upon the internet service provider, UPC, from providing its customers with access to the site.

While agreeing that the website infringed copyright, UPC opposed the injunction on the basis that it was not an “intermediary” pursuant to the EU Copyright Directive as it had no relationship with the website in question.  Moreover, UPC considered the injunction to infringe the fundamental rights to conduct a business and to information.

ISP is an intermediary

In its ruling, the ECJ had little difficulty in finding that an ISP is an “intermediary” for the purpose of the EU Copyright Directive which, as a result, can be the subject of an injunction under Article 8 of the EU Copyright Directive.  The ECJ stated that “neither the wording of Article 8(3) nor any provision of [the EU Copyright Directive] indicates that a specific relationship between the person infringing copyright or a related right and the intermediary is required”.  Moreover, it is not necessary to show that the ISP’s customers actually accessed the infringing website as the EU Copyright Directive is aimed at “not only at bringing an end infringements of copyright … but also at preventing them”.

The ECJ concluded that the ISP is an intermediary because it is “an inevitable actor” in any transmission of an infringement over the internet.  Indeed, the ECJ stated that to exclude ISPs from injunctive relief under the EU Copyright Directive “would substantially diminish the protection of rightholders sought by that directive”.

Balancing EU fundamental rights with effective enforcement  

The ECJ recognized that any injunction must comply with EU fundamental rights, notably the right to conduct a business and right to information.

However, in this case, the ECJ considered that the right to conduct a business was not infringed because the injunction left it open to the ISP to determine the specific measures to be taken in order to achieve the result sought.  This enables the ISP to avoid liability by proving that it took “all reasonable measures” to carry out the injunction.

The ECJ also held that the injunction should comply with the right to information by being strictly targeted in bringing the infringement to an end without affecting internet users who are using the IPS’s services to access lawful information.  The ECJ stated that internet users must also be given the possibility to assert their rights before the national court once the implementing measures taken by the ISP are known.  With that said, the ECJ held that the implementing measures should have the effect of “preventing” or “seriously discouraging” unauthorized access.

Concluding remarks

The judgment is an important clarification on the enforcement of rights against websites that infringe copyright. However, the ruling also emphasizes the importance of fundamental rights when considering the appropriate means of enforcement.

Reference: Case C-314/12, UPC v. Constantin Film & Wega (Judgment of 27 March 2014)

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