Judgment in Case C-314/12 UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH

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.

 

 

Constantin Film Verleih, a German  company which holds , inter alia , the rights to the films ‘Vicky  the Viking ’and ‘Pandorum’, and Wega Filmproduktionsgesellschaft, an Austrian  company which  holds the right s to the film ‘The White Ribbon ’, became aware that their films could be viewed or  even downloaded from the  website ‘kino.to’ without their consent. At the request of those two  companies , the Austrian courts prohibited UPC Telekabel Wien, an internet  service provider  (‘ISP’)  established in Austria, from providing its customers with access to that site. UPC Telekabel  considers that such an injunction cannot be addressed to it , because, at the material time, it did not  have any business relationship with the operators of kino.to and it was never established that its  own customers acted unlawfully. UPC Telekabel also claims that the  various blocking measures  which may be introduced could, in any event, be technically circumvented.  Finally, some of those measures are excessively costly. Hearing the case at last instance, the Oberster Gerichtshof ( Supreme Court, Austria) asked the  Court of Justice to interpret the EU  Copyright Directiveand the fundamental rights recognised by  EU law. The directive provides for the possibility for rightholders to apply for an injunction against  intermediaries whose services are used by a third party to infringe their rights 5 . UPC Telekabel  submits that it cannot be considered to be an intermediary  in that sense .  In today’s judgment,  the Court replies to the Oberster Gerichtshof that a person who makes  protected subject – ma tter 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 , such as UPC Telekabel, which allows its customer s 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, in that regard, 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 o f related rights  to an end, but also at preventing them. The Oberster Gerichtshof also  seeks to know whether the fundamental rights  recognised at EU  level  preclude a national court from prohibiting an  ISP , by means of an injunction, from allowing its  customers access to a website which places protected subject – matter online without the agreement  of the rightholders , when that injunction does not specify the measures which the  ISP must take  and when that  ISP can avoid incurring  coercive penalties for breach  of the injunction by showing  that it has taken all reasonable measures. In this connection, the Court notes that, within the framework of such an injunction, copyrights and  related rights (which  are intellectual property)  primarily enter into conflict with the freedom to  conduct a business , which economic agents (such as internet  service providers) enjoy , and with the freedom of information of internet users .  Where several fundamental rights are  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.  With regard, more specifically, to the  ISP ’s freedom to conduct a business, the Court considers  that that injunction does not seem to infringe the very substance of that right, given that, first, it  leaves  its addressee to determine the specific measures to be taken in order to achieve the result  sought , with the result that he can choose to put in place 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 , and that, secondly, it  allows him  to avoid liability by proving that he has taken all reasonable measures.

 

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 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. 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.

 

 

Authors, CJEU, EU & Law, Court of Justice, Latif Aran

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