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27 March 2014Copyright

CJEU rules ISPs can be told to block access to websites

Internet Service Providers (ISPs) can be forced to block access to websites that infringe copyright, and blocking orders are compatible with European Union law, Europe’s highest court has ruled.

In a decision published yesterday, March 27, the Court of Justice of the European Union (CJEU) said an ISP is an “intermediary” whose services can be used to infringe copyright.

The CJEU was answering questions posed by a case in Austria involving UPC Telkebel, the Austrian ISP arm of telecommunications company Liberty Global. It had been asked by Austria’s Supreme Court (Oberster Gerichtshof) to interpret the EU Copyright Directive.

This allows rights holders to apply for injunctions against intermediaries whose services are used to infringe IP rights.

The dispute started when Constantin Film Verleih, a German company that holds the rights to several films, and Wega Filmproduktionsgesellschaft, an Austrian company, asked the Supreme Court to block UPC subscribers’ access to kino.to.

The website allegedly posted films owned by the companies and made them available to watch and download.

However, the court referred the case to the CJEU and asked it to determine whether an ISP could be held liable.

UPC said an injunction cannot be addressed to it because it did not have any business relationship with the operators of kino.to and it was never established that its own customers had acted unlawfully.

UPC added that the various blocking measures that might be introduced could be circumvented and that some of those measures are excessively costly.

However, the CJEU rejected its claims.

“The court notes, in that regard, that the directive, which seeks to guarantee a high level of protection of rightsholders, does not require a specific relationship between the person infringing copyright and the intermediary against whom an injunction may be issued,” it said in its judgment.

However, the CJEU added that an injunction should only be issued if its users can access the information legally elsewhere.

It added that the ISP “must be able to assert” its rights before the court and that it is a matter for the national authorities and courts to check whether the conditions for an injunction are satisfied.

The verdict is in line with several national court rulings, including the UK High Court.

Austria’s Supreme Court will now have to decide on the case based on the CJEU’s findings.

A spokesman for UPC told WIPR it noted the judgment.

“We believe that the decision to block websites or other internet content is properly one for courts and for lawmakers. We are pleased that the court has now given guidance as to the way in which such decisions should be approached.”

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