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Court of Justice of the European Union Holds that ISPs (Internet Service Providers) May Be Ordered to Block Customer Access to Websites Infringing Copyright

On a reference from the Supreme Court of Austria, the Court of Justice of the European Union (CJEU) has held that ISPs may be ordered to block their customers’ access to websites which infringe copyrightUPC Telekabel Wien GmbH v Constantin Film Verleih GmbH, Case C-314/12 (CJEU, Mar. 27, 2014).

Constantin Film Verleih and Wega Filmproduktionsgesellschaft became aware that their films could be viewed and downloaded from the website kino.to without their consent.  At their request, the Austrian courts prohibited UPC Telekabel, an ISP, from providing its customers with access to that site.  UPC maintained that it should not be subject to an injunction because it did not have any business relationship with kino.to and it was never established that its own customers acted unlawfully. UPC further claimed that the various blocking measures that could be introduced could be technically circumvented and that some of these measures were disproportionately costly.

The Supreme Court of Austria, hearing the case at last instance, stayed the proceedings to refer questions to the CJEU concerning the interpretation of the EU Copyright Directive 2001/29/EC, which provides for the possibility of rights holders to apply for an injunction against intermediaries whose services are used by a third party to infringe their rights.

The CJEU held that a person or entity making protected subject matter available to the public without the consent of the rights holder is using the services of the business that provides internet access to persons accessing that particular subject matter.  Therefore an ISP which allows its customers access to protected subject matter made available to the public on the internet by a third party is considered to be an intermediary whose services are being used to infringe copyright.

Further, the CJEU noted that the Directive, which seeks to guarantee a high level of protection to rights holders, does not require a specific relationship between the copyright infringer and the intermediary against whom an injunction could be issued. There was no need to prove that the customers of the ISP actually accessed the protected subject matter made accessible on the third-party website because the Directive required that member states take measures in order to both end and prevent infringements of intellectual property rights.

The CJEU found that an injunction prohibiting an ISP from allowing its customers access to a website placing protected subject-matter online without the agreement of the rights holders did not infringe the fundamental rights of ISPs provided that the measures taken by the ISP did not unnecessarily deprive internet users of lawfully accessing the information available and that those measures resulted in the prevention of unauthorized access to the protected subject matter or, at least, made it difficult to do so and seriously discouraged internet users using the services of the ISP subject to that injunction from accessing the infringing material.  It was a matter for the national courts to establish whether those conditions were satisfied.

Practice Note:  The ruling provides rights holders with another tool to combat piracy and copyright infringement online.

© 2020 McDermott Will & EmeryNational Law Review, Volume IV, Number 128

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