On 27 March 2014, the Court of Justice of the European Union ("ECJ") responded to a preliminary question of the Austrian Supreme Court (Oberster Gerichtshof) on the interpretation of Article 8(3) of Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the "Directive").

Article 8(3) of the Directive provides that right holders should be able "to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right".

The preliminary question arose in the context of proceedings between film producers Constantin Film and Wega and UPC Telekabel, an internet service provider. Constantin Film and Wega requested the court to order UPC Telekabel to block access to certain websites offering downloads and streaming of films without their consent. They argued that, by allowing its customers to access these websites, UPC Telekabel is an intermediary whose services are used to infringe their copyright within the meaning of Article 8(3) of the Directive. UPC Telekabel objected to this position. UPC Telekabel's defense was based on the fact that there was no contractual relationship with the hosts of the copyright-infringing website and that claimants failed to establish that its customers actually accessed the website.

At first instance, the Commercial Court of Vienna (Handelsgericht Wien) rejected UPC Telekabel's arguments and ordered it to block access to the copyright-infringing website for its customers. In order to do so, UPC Telekabel had to block the site's domain name and current IP address as well as any other known IP address of the website. This judgment was partly overruled by the Higher Regional Court of Vienna (Oberlandesgericht Wien) which held that UPC Telekabel should be free to choose the specific measures to be taken in order to block access to the website.

The case was appealed to the Austrian Supreme Court, which decided to stay the proceedings and request a preliminary ruling from the ECJ on whether a person who makes protected works available to the public on a website without the consent of the right holders should be considered using the services of the internet provider as an intermediary to infringe copyright. In addition, it also questioned the ECJ on how to balance a court injunction with the protection of fundamental rights protected by EU law.

The ECJ pointed out that the actual wording of Article 8(3) of the Directive does not expressly require a business relationship between the host of the website and the internet service provider. Nor does it require proof that the customers of the internet service provider actually access the website offering content without the agreement of the right holders. By contrast, internet service providers that were ordered to take measures should not only take measures to put to an end infringements of copyright, but should also take appropriate actionto prevent protected works from being made available to the public.

The ECJ thus held that an internet service provider should indeed be considered to be an intermediary within the meaning of Article 8(3) of the Directive, whose services are used to make protected work available without the consent of the right holders.

With regard to the second preliminary question, the ECJ noted that it is up to the national courts ordering an injunction to ensure that the injunction is in balance with the fundamental rights protected by the European Union. The ECJ added that an injunction to block access to a website seems to be in conflict with the following EU fundamental rights; (i) the freedom to conduct a business; (ii) the freedom of information of internet users; and (iii) the protection of certain intellectual property rights.

Freedom to conduct a business

The ECJ held that an injunction to block access to a specific website may restrict the internet service provider's freedom to conduct a business, but does not seem to infringe the essence of its freedom. An internet service provider remains free to decide which measures it will take. In addition, an internet service provider can avoid being held liable by showing that it has taken all reasonable measures. Therefore, the ECJ found that a provider is not required to make unreasonable sacrifices to its freedom to conduct a business.

Freedom of information of internet users

The ECJ added that an internet service provider taking measures to comply with the injunction should ensure that the freedom of information of its customers is not infringed. Internet users may not be deprived of their right to access lawfully information on the internet.

Protection of intellectual property rights

Finally, the ECJ held that internet service providers against whom an injunction has been issued should take all reasonable measures that are sufficiently effective actually to block the access to the website. However, the protection of copyright is not absolute and it may be impossible to put a complete end to the infringements. Therefore, the ECJ found that measures should have the effect of making it difficult or discouraging internet users from accessing the website illicitly offering protected work. Accordingly, and contrary to what UPC Telekabel had argued, the ECJ thus did not find that the court must determine the measures to be taken. Instead, it is up to UPC Telekabel to adopt adequate and "reasonable" measures.

This important judgment of the ECJ opens the door for court injunctions ordering internet service providers to block access to a copyright-infringing website, without imposing specific measures that should be taken by these providers.

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