While the authors of this blog were enjoying the consumer law conference in Oxford (more on this in a later post), the CJEU handed down its judgment in the intriguing case of UPC Telekabel Wien v Constantin and Wega last Thursday. For a summary of the facts of the case and Advocate-General Cruz's opinion, please refer to an earlier post on this blog ('Ius est ars aequi et boni').
The UPC case concerned the topical and difficult question of how to strike a balance between the rights of copyright holders (on films, in this case), consumers / internet users and internet service providers. Can providers be assigned the responsibility to take action to prevent the infringement of copyright by internet users to which they offer their services, considering that they do not have any direct contractual relationship to the copyright holders and it might be very burdensome (if not impossible) to take adequate measures to prevent users from illegally accessing copyright-protected material?
The CJEU's judgment in general seems to be in the affirmative, or at least not in the negative, though the Court takes great care to outline the conditions under which internet service providers are to be held to this responsibility.
In a first step, the Court considers that internet services providers fall within the scope of Article 8(3) of the Copyright Directive, which states that ‘Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right’ (para. 30 of the judgment). The lack of a contractual relationship does not affect this conclusion:
'Neither the wording of Article 8(3) nor any other provision of Directive 2001/29 indicates that a specific relationship between the person infringing copyright or a related right and the intermediary is required. Furthermore, that requirement cannot be inferred from the objectives pursued by that directive, given that to admit such a requirement would reduce the legal protection afforded to the rightholders at issue, whereas the objective of that directive, as is apparent inter alia from Recital 9 in its preamble, is precisely to guarantee them a high level of protection.' (para. 35)
In a second step, then, the Court establishes that it remains mostly a matter for national laws to regulate court injunctions prohibiting internet service providers from allowing their customers to illegally access copyright-protected material. EU law does not (!) preclude an injunction that 'does not specify the measures which that access provider must take and when that access provider can avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures, provided that (i) the measures taken do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and (ii) that those measures have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject-matter that has been made available to them in breach of the intellectual property right, that being a matter for the national authorities and courts to establish.' (para. 64)
The CJEU supports this conclusion by pointing out that an injunction restricts the service provider's freedom to conduct a business (protected under Article 16 of the EU Charter of Fundamental Rights), but does not touch upon its essence - the internet provider can choose the means to prevent users from illegally accessing copyright-protected works and may avoid liability by proving to have taken all reasonable measures. Regarding the measures to be taken, the Court observes:
'In that regard, in accordance with the principle of legal certainty, it must be possible for the addressee of an injunction such as that at issue in the main proceedings to maintain before the court, once the implementing measures which he has taken are known and before any decision imposing a penalty on him is adopted, that the measures taken were indeed those which could be expected of him in order to prevent the proscribed result.'
'None the less, when the addressee of an injunction such as that at issue in the main proceedings chooses the measures to be adopted in order to comply with that injunction, he must ensure compliance with the fundamental right of internet users to freedom of information.'
'In this respect, the measures adopted by the internet service provider must be strictly targeted, in the sense that they must serve to bring an end to a third party’s infringement of copyright or of a related right but without thereby affecting internet users who are using the provider’s services in order to lawfully access information. Failing that, the provider’s interference in the freedom of information of those users would be unjustified in the light of the objective pursued.' (paras. 54-56)
In this respect, the role of national judges is underlined:
'It must be possible for national courts to check that that is the case. In the case of an injunction such as that at issue in the main proceedings, the Court notes that, if the internet service provider adopts measures which enable it to achieve the required prohibition, the national courts will not be able to carry out such a review at the stage of the enforcement proceedings if there is no challenge in that regard. Accordingly, in order to prevent the fundamental rights recognised by EU law from precluding the adoption of an injunction such as that at issue in the main proceedings, the national procedural rules must provide a possibility for internet users to assert their rights before the court once the implementing measures taken by the internet service provider are known.' (para. 57)
Finally, copyright holders might face continuing (minor) infringements of their copyright, insofar as measures to prevent access may be circumvented and copyright is not an absolute right. Still, 'the measures which are taken by the addressee of an injunction, such as that at issue in the main proceedings, when implementing that injunction must be sufficiently effective to ensure genuine protection of the fundamental right at issue, that is to say that they must have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject-matter made available to them in breach of that fundamental right' (para. 62)
While one cannot but admire the Houdini-like turns the Court takes in order to avoid chaining itself to a fixed balancing of the rights of all stakeholders involved, this judgment leaves many questions unanswered. The judgment re-emphasises EU law's strong right-based approach to access to films and other works through the internet, which is debatable in light of ongoing developments in the digital world. Furthermore, the Court's detailed considerations on the various aspects national judges have to take into account when considering the responsibilities of a service provider in a specific case hardly give any guidance as to the actual measures that may meet all the criteria - neither to national judges nor to internet providers. True, this is to a large extent a technical matter. Yet, it seems that the main burden of finding adequate and reasonable measures to prevent illegal access to information is now put on the internet service providers (and, indirectly, on judges assessing their cases). It may be questioned whether that outcome reflects a 'fair balance' in light of the EU Charter…
For a summary of the judgment, see also the CJEU's press release.
For a summary of the judgment, see also the CJEU's press release.