Can copyright holders demand from internet service providers (ISPs) blocking access to sites that violate copyrights? According to Advocate General Cruz Villalon, they can. Judgment passed in the UPC Telekabel case will add to the growing CJEU case law related to the obligations of online intermediaries. It will enrich the ongoing debate on blocking websites and whether it is a lawful tool against online infringements. If the Court follows the opinion of Advocate General, it may also lead to a flood of similar cases.
Facts of the case
The case concerns the UPC Telekabel Wien, a big Austrian internet service provider, and the Constantin Film Verleih and Wega Filmproduktionsgesellschaft, the holders of copyrights. The Constantin Film and Wega demanded from UPC that it bans its customers from accessing the website kino.to. On this website viewers were able to watch – stream or download – movies protected by copyrights. According to the Constantin and Wega more than 4 million users downloaded or streamed around 130 000 movies without the permission of the owners of copyrights. Since it was difficult for the owners of copyrights to identify who operated the website, they looked for alternative methods and directed their demands to UPC. It is interesting to point out that the website ceased to be active in 2011 and the persons behind it were arrested and prosecuted in Germany.
Opinion of the AG
UPC argued that there was no legal link between the company and the kino.to website. There was no contract between UPC and the operators of the website where the unlawful content was uploaded. At the same time it was possible for UPC customers to visit the website. Based on that the Advocate General argues that operators of kino.to made in fact use of the UPC services. As a result the Constantin and Wega could demand from the UPC that it blocked access to this website. The AG pointed out that the prohibition of access should not be too general. In order to balance fundamental rights ISPs should be instructed in an injunction what kind of measures they should take to make access to websites impossible. The AG is not discouraged by the fact that most of the technical measures can be easily circumvented.
CJEU on copyrights online
As a general rule ISPs are not expected to monitor electronic communication. They are only obliged to take action when they become aware of infringements. There is a growing number of case law that gives guidance on these matters. The most important CJEU decisions include those in cases Scarlet/SABAM (C-70/10) Netlog/SABAM (C-360/10), where the court said that intermediaries, both ISPs as well as social networking sites, cannot be expected to filter electronic communication.
The UPC Telekabel case, similarly to the previous cases, requires the balancing of rights: freedom of speech and information, as well as freedom to conduct business and the right to privacy on one hand, and the protection of intellectual property on the other. It will be interesting to see the result of such balancing performed by the Court in the current case.
Zuzanna Warso, lawyer at the Helsinki Foundation for Human Rights, contact: firstname.lastname@example.org