he Court of Justice of the European Union gave judgment this morning in Case C-314/12 UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH, a reference for a preliminary ruling from the Oberster Gerichtshof (the Austrian Supreme Court). Curia’s own media release says this : An internet service provider may be ordered to block its customers’ access to a copyright-infringing website Such an injunction and its enforcement must, however, ensure a fair balance between the fundamental rights concerned
Two Austrian film companies – Constantin Film Verleih and Wega Filmproduktionsgesellschaft – claimed that website kino.to illegally streams their copyrighted films to Internet provider UPC Telekabel Wien’s users. While UPC has no direct connection to the website, the film companies sought a court order forcing the ISP to block its users from the website. A trial court granted the injunction, and an appeals court affirmed, but neither specified how UPC should carry out the block. The Austrian Supreme Court asked the Court of Justice of the European Union to advise whether the injunction against UPC conflicted with EU copyright law, and whether the Internet provider can be considered an intermediary to the infringement.
In the new judgment, the Court holds … that a person who makes protected subject-matter available to the public on a website without the agreement of the rightholder is using the services of the business which provides internet access to persons accessing that subject-matter. Thus, an ISP which allows its customers to access protected subject-matter made available to the public on the internet by a third party is an intermediary whose services are used to infringe a copyright. The Court notes … that the directive, which seeks to guarantee a high level of protection of rightholders, does not require a specific relationship between the person infringing copyright and the intermediary against whom an injunction may be issued. Nor is it necessary to prove that the customers of the ISP actually access the protected subject-matter made accessible on the third party’s website, because the directive requires that the measures which the Member States must take in order to conform to that directive are aimed not only at bringing infringements of copyright and of related rights to an end, but also at preventing them holding “To exclude internet service providers from the scope of the law would substantially diminish the protection of rightholders sought by that directive.”
However there are several fundamental rights at issue, Member States must ensure that they rely on an interpretation of EU law and their national law which allows a fair balance to be struck between those fundamental rights and strike a balance between copyright holders, the business interests of Internet providers and the right to information enjoyed by EU citizens.
The Court therefore holds that the fundamental rights concerned do not preclude such an injunction, on two conditions: (i) that the measures taken by the ISP do not unnecessarily deprive users of the possibility of lawfully accessing the information available (the rights of the users) and (ii) that those measures have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging users from accessing the subject-matter that has been made available to them in breach of the intellectual property right [in order to respect the intellectual property rights of rights owners]. The Court states that internet users and also, indeed, the ISP must be able to assert their rights before the court. It is a matter for the national authorities and courts to check whether those conditions are satisfied.
The ruling confirms an opinion last year from the European Court of Justice’s Advocate General Cruz Villalón which held that It is incompatible with the weighing of the fundamental rights of the parties to prohibit an internet service provider generally and without ordering specific measures – However, a specific blocking measure imposed on a provider relating to a specific website is not, in principle, disproportionate.
In related news, German music collecting society GEMA is reporting a legal victory over the popular UseNeXt service provider. GEMA says it has obtained a “ground breaking” court injunction which compels Aviteo Ltd, operator of UseNeXT, to prevent copyright infringement on a selection of songs in GEMA’s repertoire or face being held liable for their misuse.