Measures Internet provider must take to implement injunction to access a website must be effective and prevent or at least hinder unauthorized notices of protected works

COPYRIGHT – NEIGHBOURING RIGHTS

A person who makes protected subject-matter available to the public on a website without the agreement of the rightholder, is using the services of the internet service provider  of the persons accessing that subject-matter.

"40. In view of the above, the answer to the first question is that Article 8(3) of Directive 2001/29 must be interpreted as meaning that a person who makes protected subject-matter available to the public on a website without the agreement of the rightholder, for the purpose of Article 3(2) of that directive, is using the services of the internet service provider of the persons accessing that subject-matter, which must be regarded as an intermediary within the meaning of Article 8(3) of Directive 2001/29."

Injunction to ISP to provide customers access to a website that does not specify what measures should be taken does not conflict with freedom of enterprise. 

"52. First, an injunction such as that at issue in the main proceedings leaves its addressee to determine the specific measures to be taken in order to achieve the result sought, with the result that he can choose to put in place measures which are best adapted to the resources and abilities available to him and which are compatible with the other obligations and challenges which he will encounter in the exercise of his activity.
 

53. Secondly, such an injunction allows its addressee to avoid liability by proving that he has taken all reasonable measures. That possibility of exoneration clearly has the effect that the addressee of the injunction will not be required to make unbearable sacrifices, which seems justified in particular in the light of the fact that he is not the author of the infringement of the fundamental right of intellectual property which has led to the adoption of the injunction."

Measures Internet provider must take to implement injunction to access a website must be effective and prevent or at least hinder unauthorized notices of protected works: complete cessation not required.

"63. Consequently, even though the measures taken when implementing an injunction such as that at issue in the main proceedings are not capable of leading, in some circumstances, to a complete cessation of the infringements of the intellectual property right, they cannot however be considered to be incompatible with the requirement that a fair balance be found, in accordance with Article 52(1), in fine, of the Charter, between all applicable fundamental rights, provided that (i) they do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and (ii) that they have the effect of preventing unauthorised access to 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."

IPPT20140327, CJEU, UPC Telekabel v Constantin Film

C‑314/12 - ECLI:EU:C:2014:192