On March 27, 2014, the highest court in the European Union—the Court of Justice for the European Union (CJEU)—decided that copyright owners have the right to seek injunctions against Internet service providers (ISPs) requiring the ISPs to block access to pirate websites illegally streaming or making copyright material available for download.
The case arose out of a dispute in Austria between two movie companies and an Austrian ISP, UPC Telekabel Wien GmbH. The movie companies were concerned about access to an illegal streaming site, Kino.to, which was making copies of films such as Vicky the Viking and The White Ribbon available to its subscribers. The Austrian Supreme Court had asked the CJEU whether the movie companies were entitled under European law to seek an injunction against the ISP, not just against the illegal streaming site.
EU law allows holders of intellectual property rights to seek an injunction against any “intermediary” that provides services to third parties and, in doing so, helps them to infringe copyrighted works. The Austrian Supreme Court asked the CJEU for a ruling on whether ISPs in this position were considered to be an intermediary for the purposes of the European legislation.
The CJEU answered in the affirmative, finding that “a person who makes protected subject matter available to the public on a website without the agreement of the right holder is using the services of the business which provides internet access to persons accessing that subject matter.” So, in effect, an ISP such as UPC Telekabel that allows its customers to access protected subject matter made available to the public on the Internet by a third party is an intermediary whose services are used to infringe copyright.
The ISP had argued that it could not be held responsible for the material on the streaming site because it had no business relationship or cooperation with the operators of the unauthorized streaming site and because there was no proof that any of the ISP’s subscribers had actually used Kino.to to access pirated films.
The CJEU had little sympathy for the ISP. It noted that EU copyright law does not require there to be a specific relationship between the person infringing copyright and the intermediary against whom an injunction might be sought, nor is it necessary to prove that end users have actually used the site at issue.
To some extent, the decision is not surprising—but it is important that it comes from Europe’s highest court. Previously, in a case in 2011 in the UK, the Motion Picture Association of America and various film studios sought an injunction against BT, a UK ISP, seeking to block access to a website that facilitated the sharing of materials infringing their copyrights.
In that case, the infringing website, www.newzbin.co.uk, had originally been shut down following legal action but then immediately reappeared outside the UK and therefore not within the UK court’s jurisdiction. As a result, the claimants stepped up a level and applied for an injunction against BT as the ISP. BT argued that it did not have actual knowledge of the infringements, that it was a mere conduit and that an ISP was not obligated to monitor activity over its service.
In that case, the judge did not feel the need to refer the case to the CJEU and proceeded to grant the injunction. He held that BT had actual knowledge that some form of copyright infringement was happening in the sense that BT was aware that the service was being used to infringe—but it was not necessary to show actual knowledge of any specific instances of infringement.
The Telekabel case goes further and is more broadly-based than the BT case—which will be of considerable comfort to copyright holders. The film industry has been seeking to enforce copyright rights against illegal streaming sites for some time, and the CJEU’s decision in this case is of significant importance in underlining that a key weapon in that fight—the ability to seek injunctions against the ISPs that facilitate access to online streaming sites—is valid.
Other copyright owners may be sharpening their swords for battle in the European courts.