The Court of Justice of the European Union (the CJEU) last week upheld the system of website blocking injunctions in place in Austria, following a reference from the Austrian Supreme Court in the case of UPC Telekabel v Constantin Film.
This should come as no surprise, since Member States are obliged under Article 8(3) of the 2001 Copyright Directive to “ensure that rightholders are in a position to apply for an injunction against intermediaries whose service are used by a third party to infringe a copyright or related right”. If the existence of that obligation wasn’t a clear enough indication that website blocking injunctions are permitted under EU law, the recitals to the Directive make clear that “in the digital environment” such an injunction should be available “against an intermediary who carries a third party’s infringement of a protected work … in a network”.
Article 8(3) is the provision under which the Austrian blocking injunction regime was introduced, as well as section 97A injunctions in the UK and equivalent provisions in several other Member States.
Against that background, the CJEU concluded that a person who made available infringing copies of films on the internet “used” the services of the end user’s internet access provider in order to infringe and so a blocking order that might prevent an end user from accessing infringing content was properly within the scope of Article 8(3). The court recognised, unsurprisingly, that any such injunction regime would need to respect the fundamental rights of both end users and the internet access provider, but indicated that this requirement would not be difficult to comply with in practice.
In comments that will be welcomed by rights holders, the court elaborated on its view of the permitted scope of blocking injunctions, remarking that they can legitimately play a preventative role – their use is not simply limited to stopping the continuance of known infringements but also in preventing them. In the words of the court, such preventive effect “presupposes that the holders of a copyright … may act without having to provide that the customers of an internet service provider actually access the protected subject-matter” and that “it is not decisive that persons who make up [the] public have actually had access to that work or not”.
As a result of its conclusion on the scope of Article 8(3), the court was able to duck the (perhaps) more interesting question posed by the Austrian court – the extent to which the defence for “transient and incidental reproduction” can apply where the defendant obtained the copyright work from an unauthorised source. The answer to that question, which will have important implications for rights owners, will have to wait for another day.
The judgment can be found here.