European Court of Justice specifies conditions under Article 8(3) of the Copyright Directive governing an injunction against ISPs
28/08/2014

In a decision of 27 March 2014, the European Court of Justice (“ECJ”) held that Article 8(3) of Directive 2001/29/EC (the “Copyright Directive”) also allows injunctions to be applied for against Internet Service Providers (“ISPs”) if an ISP has granted access not to the copyright infringer itself but only to the users of the protected movies. The ECJ described the conditions under which an injunction, prohibiting an ISP from allowing its customer’s access to a website that places protected movies online, is compatible with EU fundamental rights.

This case concerns a dispute between Constantin Film and Wega (two film production companies) and UPC Telekabel (a major Austrian ISP). UPC Telekabel provided its customers with access to the website under the domain name kino.to that enabled users to download or stream films protected by the copyright held by the two film production companies. The two film production companies applied for an injunction to have UPC Telekabel ordered to block its customers’

access to kino.to. UPC Telekabel contested the order mainly for two reasons: first, the ISP has no relationship with the operators of the website, and second, the various measures that can be introduced to block access to the website can all be technically circumvented.

In the first part of its decision, the ECJ confirmed its earlier case-law in LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten and Scarlet to the extent that it recognizes that ISPs may in principle be regarded as “intermediaries whose services are used by a third party to infringe a copyright” within the meaning of Article 8(3) of the Copyright Directive. Moreover, the ECJ further clarified the case-law on the protection of copyright on the Internet by holding that Article 8(3) of the Copyright Directive covers an injunction against ISPs that have granted access to the users of the protected works. This conclusion was reached even from recognizing that no contractual relationship exists between the ISP and the copyright infringer (i.e., the operator of the website kino.to) and without having to prove
that the ISP’s customers actually accessed the protected works via the website.

In the second part of its decision, the ECJ describes the conditions under which an injunction (which prohibits an ISP from allowing its customers access to a website which places protected works online without the consent of the rightholders) would be compatible with EU law. The ECJ reviews the compatibility of the injunction by considering different conflicting EU fundamental rights such as the protection of intellectual property rights under Article 17(2) of the Charter of Fundamental Rights (the “Charter”), the freedom to conduct a business under Article 16 of the Charter, and the freedom of information of Internet users under Article 11 of the Charter.

As regards the freedom to conduct a business of an ISP, the ECJ held that the very substance of this right is not affected because, on the one hand, the ISP is free to determine the specific measures it will take to achieve the blocking of the website so that it can choose the measures that are best adapted to its resources and abilities, and on the other hand, the injunction allows the ISP to escape liability if the ISP can prove it has taken all reasonable measures that could be expected of it in order to prevent its customers’ access to the website. Consequently, the ISP is not expected to make unbearable sacrifices since it is not the copyright infringer. In this regard it must also be possible for the ISP to maintain the confirmation before the court that the measures taken were indeed those that could be expected of it in order to prevent the condemned result.

Finally, the ECJ stresses that the measures taken by the ISP must comply with the Internet users’ fundamental right to freedom of information and also comply with the protection of intellectual property rights. It states that:

• the measures may not unnecessarily deprive Internet users of the possibility of lawfully accessing the information available and;
• the measures must prevent unauthorized access to protected works or at least make the unauthorized access difficult to achieve (i.e., measures that must be appropriate to attain the objective of protecting intellectual property rights under Article 17(2) of the Charter of Fundamental Rights).

In summary, the ECJ held that under the conditions described above, EU fundamental rights must be interpreted as not precluding an injunction, such as the injunction in the case here which prohibits an ISP from allowing its customers access to a website that placed protected works online without the consent of the right holders.

Zie ook : Stibbe Luxembourg ( Mr. Erik Valgaeren ,  Mr. GĂ©rald Origer ,  Mr. Cedric Lindenmann )