In Case C-314/12 UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH the CJEU has considered a reference from Austria (Oberster Gerichtshof (Austrian Supreme Court)). Proceedings had been brought after the owners of copyright-protected films had noticed that certain of their films were available on kino.to (a now defunct site). The Austrian court was required to decide if an order prohibiting UPC Telekabel Wien from allowing its customers access to the kino site was permissible.
The questions referred concerned interpretation of the InfoSoc Directive and were as follows:
1. Is Article 8(3) of the Directive to be interpreted as meaning that a person who makes protected subject matter available on the internet without the right holder’s consent is using the services of the access providers of persons seeking access to that protected subject matter?
2. If the answer to the first question is in the negative, are reproduction for private use and transient and incident reproduction permissible only if the original reproduction was lawfully reproduced, distributed or made available to the public?
3. If the answer to the first and second question is in the affirmative, and an injunction is therefore to be issued against the user’s access provider in accordance with Article 8(3) of the Directive, is this compatible with Union law, in particular with the necessary balance between the parties’ fundamental rights?
4. If the answer to the third question is in the negative, is it compatible with Union law to require an access provider to take specific measures to make it more difficult for its customers to access a website containing material made available unlawfully if those measures require not considerable costs and can easily be circumvented without any special technical knowledge?
The CJEU gives a relatively short judgment, especially considering the complexities involved, so it may be worth reading in full. In essence, the Court considers that ISPs can be an intermediary whose services are used to infringe copyright. It follows that placing restrictions on them can be proportionate. Moreover, measures may be directed at preventing potential breaches of copyright as well as bringing breaches to an end. An injunction of the kind ordered does not infringe the very substance of the freedom to conduct business of an ISP. It leaves the ISP to determine the specific measures to be taken in order to achieve the result sought and allows it to avoid liability by proving that it has taken all reasonable measures.
The Court stated:
‘EU law must be interpreted as not precluding a court injunction prohibiting an internet service provider from allowing its customers access to a website placing protected subject-matter online without the agreement of the rightholders when that injunction does not specify the measures which that access provider must take and when that access provider can avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures, provided that (i) the measures taken do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available 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 internet users who are using the services of the addressee of that injunction from accessing the subject-matter that has been made available to them in breach of the intellectual property right, that being a matter for the national authorities and courts to establish.’
The full judgment is available here.
