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[caption id="attachment_5881" align="alignnone" width="240"] ISPs-between a rock and hard placePhoto: Michael Sheehan - Flickr[/caption]
A website made films available as downloads or for streaming on an unauthorised basis. Two film production companies sought an order enjoining UPC Telekabel, an ISP, to block the access of its customers to the website by blocking that site’s domain name and current IP address and any other IP address of that site of which UPC Telekabel might be aware.
Austria’s Supreme Court decided that:
UPC Telekabel’s submitted case was that its services could not be considered to be used to infringe a copyright or related right within the meaning of the InfoSoc Directive, art 8(3) because:
The Austrian Supreme Court made a reference to the CJEU for a preliminary ruling.
Four questions were referred—questions 2 and 4 were not answered and are not dealt with here.
This centred around the InfoSoc Directive, art 8(3) (which requires member states to ensure rightholders can apply for an injunction against intermediaries whose services are used by a third party such as a website operator to infringe copyright) and whether it should be interpreted as meaning that a person who makes protected subject matter available on the internet without consent is using the services of the business which provides internet access to those accessing that subject matter.
This dealt with EU fundamental rights, asking whether general injunctions (as opposed to those ordering specific measures) issued against the user’s access provider in accordance with the InfoSoc Directive, art 8(3) are compatible with union law—in particular with the necessary balance between the parties’ fundamental rights (such as under various articles of the Charter of Fundamental Rights of the European Union (the Charter)).
Early on in the ruling, the CJEU reinforced the message that site-blocking orders are leading the way in the battle against online piracy by stating that intermediaries, used by third parties for infringing activities, are best placed to bring infringing activities to an end.
The ISP, which allows its customers to access protected subject-matter made available to the public on the internet by a website operator is an intermediary whose services are used to infringe a copyright or related right within the meaning of InfoSco Directive, art 8(3) (there did not need to be a contractual link between the ISP and the person who infringed a copyright or related right)—this ruling was not controversial.
Fundamental rights recognised by EU law must not prevent a non-specific site blocking injunction when the access provider can avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures, provided that the measures taken do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available. Those measures must have the effect of preventing unauthorised access to the protected subject-matter or, at least, make it difficult to achieve or be seriously discouraging.
In the UK, for some time now, copyright owners have been using site-blocking powers under the Copyright, Design and Patents Act 1988, s 97A (CPDA 1988) to take action against infringing websites (see Twentieth Century Fox Film Corp v Newzbin Ltd  EWHC 608 (Ch),  IP & T 1122 and Paramount Home Entertainment International Ltd v British Sky Broadcasting Ltd  EWHC 3479 (Ch),  All ER (D) 151 (Nov)).
It remains to be seen whether this ruling will change the nature of CDPA 1988, s 97A site blocking injunctions in UK courts. English judges (mainly Arnold J) have already been considering, quite thoroughly, the proportionality of site blocking orders before the orders are made, for example in EMI Records Ltd v British Sky Broadcasting Ltd  EWHC 379 (Ch),  IP & T 774 (paras –). In EMI, Arnold J acknowledged that the proportionality of a blocking order is ‘a context-sensitive question’.
As to more general orders, Arnold J’s site blocking orders ‘are narrow and targeted ones…they contain safeguards in the event of any change of circumstances. The cost of implementation to the defendants will be modest and proportionate’ (EMI, para ). In the light of this approach, a general order in the English courts that ‘leaves its addressee to determine the specific measures to be taken in order to achieve the result sought’ is unlikely to be popular because it is bound to be more uncertain. On the other hand, if a general order is given, the detailed contents of existing orders may act as guidelines for ISPs as to what may constitute ‘reasonable measures’. ISPs will want to be guided by the courts—arguably, it is cheaper than having to justify in a separate court hearing why an ISP has chosen certain measures.
And what of the prospect of an internet user supposedly asserting his rights? The English courts have experience here too. In Twentieth Century Fox Film Corporation v British Telecommunications plc (No 2)  EWHC 2714 (Ch),  1 All ER 869, a BT subscriber, Mr McMahon, who said he would be adversely affected by the proposed site blocking order, applied to be joined as an additional respondent to the proceedings. He wasn’t joined (as the ‘Casual Editor’ of Newzbin2, some of the evidence he relied on was treated as inaccurate) but he made some submissions with regards to the form of order—he wanted one that was more targeted at infringers. He proposed a system of warning notices to subscribers inspired by the Digital Economy Act 2010 (DEA 2010) and Ofcom’s draft Initial Obligations Code. This was refused by Arnold J who doubted that an order in that form would comply with the UK’s obligations under the InfoSoc Directive, art 8(3).
DEA 2010 sets out a procedure for tackling copyright infringement. DEA 2010 provisions create the new obligations for ISPs referred to above and referred to as the ‘initial obligations’. They are beyond detailed discussion here but see our Practice Note:Digital Economy Act 2010 (contained in a subscription only service in Lexis®PSL IP & IT)
DEA 2010, s 17 allows for the passing of regulations that would force ISPs to disconnect their customers if copyright owners could show that a subscriber was using their account to infringe copyright. The government has subsequently indicated that it will not enforce this provision. Section 27 of the Deregulation Bill repeals the government’s power to make provision for blocking injunctions.
At the time DEA 2010, s 17 was introduced, CDPA 1988, s 97A claims were in their infancy and the government considers now that a combination of CDPA 1988, s 97A, the City of London Police IP Crime Unit, the Intellectual Property Office’s mediation service and reforms to the Intellectual Property Enterprise Court all provide support for businesses looking to protect and enforce their IP rights (see Report: Government response to CMS Select Committee report on supporting the creative economy).
Arguably, the way ahead is that one or a mix of these organisations is used to combat internet piracy, with ISPs (reluctantly perhaps) in the lead and to some extent together with rights holders, funding the way. There is increasing pressure on ISPs to take a more prominent role in discouraging copyright infringement and pushing on with a Voluntary Copyright Alert Programme in the UK, referred to recently in the House of Commons, will help achieve this.
All links are live in the orignal of this article, contained in Lexis®PSL IP & IT For a free trial go to http://www.lexisnexis.co.uk/en-uk/products/pslfreetrial.page
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