The Advocate General’s Opinion in Case C-314/12 UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH und Wega Filmproduktionsgesellschaft GmbH has now been published. The question referred to the ECJ was whether an ISP can be required to block access by its customers to a web site which infringes copyright. According to Advocate General Cruz Villalón, it can – but any such injunction must refer to specific blocking measures and achieve an appropriate balance between the opposing interests which are protected by fundamental rights.
Background
According to Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society, Member States are to ensure that copyright holders or holders of related rights are able to apply for an injunction against intermediaries whose services are used by a third party to infringe their rights. It is now well established that ISPs can in principle be regarded as intermediaries and therefore as persons against which injunctions aimed at bringing ongoing infringements to an end can be granted (see Case C-557/07 LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten, Case C-70/10 Scarlet Extended and Case C-360/10 Sabam).
The Austrian Oberster Gerichtshof (Supreme Court) asked the Court of Justice whether a provider which provides internet access only to users of an illegal web site is to be regarded as an intermediary in that sense, ie as an intermediary whose services are used by a third party (such as the operator of an illegal web site) to infringe copyright, so that an injunction can also be granted against it. The Austrian Court also sought clarification of the EU rules on the content and procedure for the issuing of such an injunction.
The Oberster Gerichtshof is called upon to decide a legal dispute between UPC Telekabel Wien, a major Austrian internet provider, on the one hand, and Constantin Film Verleih and Wega Filmproduktionsgesellschaft, on the other. Constantin Film and Wega were granted an interim injunction prohibiting UPC from allowing its customers to access kino.to. Users of that site were able to view by streaming or download films and Constantin Film and Wega had copyright in some of those films. (In June 2011, the website kino.to closed after the German prosecuting authorities took action against its operators.) UPC has no legal relationship with the operators of the web site and made neither internet access nor storage space available to them. According to the findings of the Oberster Gerichtshof, it can, however, be assumed with near certainty that individual UPC customers availed themselves of the kino.to offer.
Opinion
In his Opinion published on 26 Novemvember, Advocate General Pedro Cruz Villalón takes the view that the internet provider of the user of a website which infringes copyright is also to be regarded as an intermediary whose services are used by a third party – that is the operator of the website – to infringe copyright and therefore also as a person against whom an injunction can be granted. That is apparent from the wording, context, spirit and purpose of the provision of EU law.
The Advocate General is also of the view that it is incompatible with the weighing of the fundamental rights of the parties (on the one hand, the fundamental right of the copyright holder to property and, on the other hand, the provider’s freedom to conduct a business and its customers’ freedom of expression and information, on which the provider can also rely) to prohibit an ISP generally and without ordering specific measures from allowing its customers to access a particular website that infringes copyright. Examples of such measures are an IP block, where requests are no longer forwarded to the blocked IP address, or a DNS block. That also applies where the provider can avoid incurring a penalty for breach of that prohibition by showing that it has taken all reasonable steps to comply with the prohibition. Advocate General Cruz Villalón underlines in that connection that the provider of the user has no connection with the operators of the web site that infringes copyright and has not itself infringed the copyright.
However, a specific blocking measure imposed on a provider relating to a specific web site is not, in principle, disproportionate only because it entails not inconsiderable costs but can easily be circumvented without any special technical knowledge. It is for the national courts, in the particular case, taking into account all relevant circumstances, to weigh the fundamental rights of the parties against each other and thus strike a fair balance between those fundamental rights.
When weighing the fundamental rights it must however be taken into account that in future action could be taken in numerous similar cases against any provider before the national courts. Advocate General Cruz Villalón also points out that rightholders must, in so far as possible, claim directly against the operators of the illegal website or their providers.
