Brussels, 27/03/2014 (Agence Europe) - An Internet access provider that provides access to its customers to a site broadcasting protected content, without copyright agreement, must be considered as an “intermediary” in the sense of the directive on copyright in the information society (2001/29/EC). Thus, it could find itself ordered by a judge to block its customers' access to this site even if the injunction imposed on it does not state any specific measures that it has to take to do so. It will be able to avoid any fines aimed at preventing any breach of the instruction by proving that it has taken “all reasonable measures” to comply with it, insofar as these measures do not unnecessarily deprive internet users of the possibility of legally accessing available information and effectively prevent or discourage unauthorised consultation of the protected subjects.
In this decision made on 27 March (case C-314/12), the European Court of Justice replies to the Austrian Supreme Court, which had been hearing a case involving internet provider UPC Telekabel Wien GmbH and two cinematographic production companies: Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft. 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 some of their films without their consent on its site. The Austrian court asked the European Court of Justice to interpret the injunction in terms of Directive 2001/29 and the fundamental rights of the EU, in the knowledge that the directive included the possibility for rightholders to apply for an injunction against intermediaries whose services are used by a third party to infringe their rights. UPC Telekabel submits that it cannot be considered to be an intermediary within the meaning of the directive since it had no commercial relationship with the site in question and that the blocking measures applicable to the customers could easily be circumvented.
In its decision, the Court confirms that UPC can effectively be considered as an intermediary whose services are used to infringe copyright. Indeed: the directive 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 other hand it demands application of the measures that aim not only to stop but to prevent attacks on copyright or similar rights. With regard to the limitation of the fundamental right of freedom to conduct a business which could result in an injunction being imposed on the provider, 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 measures taken by the internet acces provider do not unnecessarily deprive users of the possibility of lawfully accessing the information available or seriously discouraging users from accessing the subject-matter that has been made available to them in breach of the intellectual property right. (FG)