The CJEU last week ruled on the subject of blocking injunctions addressed to internet service providers (“ISPs”), requiring them to prevent access to certain websites in the interest of preventing copyright infringement (or infringement of associated IP rights).
The Judgment of the Court (Fourth Chamber) in the Austrian case of UPC Telekabel Wien GmbH v (1) Constantin Film Verlieh GmbH (2) Wega Filmproduktiongesellschaft mbH (Case C-314/12) full details available here, answers a number of questions, primarily focussed on the issue of whether such blocking injunctions are compatible with EU law. The case was initiated by film production companies Constantin Film and Wega against Telekabel (an Austrian ISP), with the aim of getting Telekabel to prevent its customers from accessing a website which was illegally permitting customers to download or ‘stream’ their films.
This is an area which has recently been in focus, particularly in light of the disruption caused to the (perfectly legitimate) Radio Times website when ISPs, as the result of an injunction targeted at the illegal streaming website First Row Sports, prevented users accessing other websites with the same IP address. Please see here for more information on this case.
Although the Austrian Court referred 4 questions to the CJEU, the Court determined that it only need answer two of them, which were:
Question 1 – which required an analysis of whether an ISP could be considered as an intermediary for the purposes of Article 8(3) of Directive 2001/29 (the “Copyright Directive”); and
Question 3 – if an ISP is an intermediary, such that an injunction is to be issued against it in accordance with the Copyright Directive, is it compatible with EU law for the injunction to be framed in general terms only (without ordering specific measures)? Is a general injunction permissible if the ISP is protected in the event of breach (i.e. if the illegal websites continue to be accessed) by showing that it had taken all “reasonable measures”?
With regard to the first question, the CJEU held that an ISP is regarded as an intermediary for the purposes of the Copyright Directive. Even though the ISP is not the author of the infringement, by hosting websites it is making copyright protected subject-matter available to the public.
Accordingly the key issue is that raised by question 3 above – is an injunction addressed to the ISPs in general terms (with no specific measures expressly set out) compatible with EU law? The CJEU held that such an injunction is compatible when the ISP can avoid incurring penalties for breach by showing it has taken all “reasonable measures” to prevent access to the infringing website.
It is clear that courts are striving to strike the perfect balance between protecting IP rights (in respect of which, the blocking of IP addresses by ISPs is a relatively cheap and efficient means of cutting traffic to the infringing websites), and ensuring that:
(1) legitimate ‘legal’ websites are not caught in the crossfire when access is denied by the ISPs (because of either an administrative error or overlap between IP addresses); and
(2) the obligations imposed on the addressee of the injunction (the ISP) are not too onerous.
Indeed with regard to the second point, the Court stated that although such measures may represent a significant cost and may require difficult and complex technical solutions, the ISPs “will not be required to make unbearable sacrifices” (paragraph 53). An injunction in general terms does not prohibit the ISP from continuing to conduct its business, and it permits the ISP to choose measures “which are best adapted to the resources and abilities available to him and which are compatible with the other obligations and challenges which he will encounter in the exercise of his activity” (paragraph 52).
There is no guidance from the Court as to what such “reasonable” measures might constitute, beyond the following statement (in paragraph 56) that “the measures adopted by the [ISP] must be strictly targeted, in that they must serve to bring an end to a third party’s infringement of copyright or of a related right but without thereby affecting internet users who are using the provider’s services in order to lawfully access information”. Such a statement seems to be a clear indication of the Court’s desire to avoid similar types of ‘collateral damage’ as that caused in the Radio Times example cited above.
The issue of infringement of intellectual property rights on the Internet is well-known, and judgments such as this do show that the courts are taking it seriously and are, on the whole, almost exclusively finding in favour of the rightsholders. However, particularly with regard to ISPs, who are not the primary infringers, a balance has to be struck between the interests of the rightsholders and the commercial interests and right of the ISPs to carry on their business without being made subject to wide, onerous injunctions requiring them to take positive steps to prevent access to particular websites. Indeed, as technology continues to develop and infringers can come up with more sophisticated means of streaming/sharing protected content, it will be interesting to see how the use, form and content of such injunctions also evolves.