Brussels, 26/11/2013 (Agence Europe) - Providers of internet access can be considered intermediaries and can therefore be ordered to block their clients' access to sites which infringe copyright. The order should stipulate the specific blocking measures and ensure a fair balance between the interests of the parties protected by fundamental rights.
This was the content of conclusions returned on Tuesday 26 November by Advocate General Pedro Cruz Villalon, in response to a request for interpretation of the directive (2001/29/EC) harmonising certain aspects of copyright and associated rights in the information society, which was made by the Austrian Supreme Court.
The Austrian court had been asked to rule on a dispute between two cinema production houses, Constantin Film and Wega, which own copyrights on films, and UPC Telekabel, a major Austrian internet provider, whose services were used by the online film distribution website kino.to to allow internet users to stream and download films without the permission of Constantin Film and Wega. The Austrian court asked: - whether, under these circumstances, the access provider can be deemed an intermediary which can be ordered to block access to a site of this kind for its clients; and whether, in order to do so, it is possible to impose specific measures on the access provider in order to make it harder for its clients to access the site in question, if such measures, which require non-negotiable means, can easily be circumvented without any specific technical knowledge.
The Advocate General recommends that the Court reply to the two questions in the affirmative. He is of the opinion that “it is incompatible with the weighing of the fundamental rights of the parties to prohibit an internet service provider generally and without ordering specific measures from allowing its customers to access a particular website that infringes copyright”. Furthermore, ordering an access provider to take a specific blocking measure against a specific website “is not, in principle, disproportionate only because it entails not inconsiderable costs but can easily be circumvented without any specific technical knowledge”. When taking measures of this kind, national courts must take account of the specific circumstances and guarantee a fair balance between the fundamental rights of the parties, in other words the property right of the owner of the rights and the commercial freedom of the access provider. (FG/transl.fl)