Tuesday 26 November 2013

Advocate General's Site Blocking Opinion in 15 tweets

[Update: the Court issued its judgment on 27 March 2014.  My assessment here.]

Today the CJEU issued the Advocate General's Opinion in the UPC Telekabel copyright site blocking case.  The Court's official press release is here (PDF).

And here is my attempt to summarise the Opinion (doing the best I can courtesy of Google Translate, since there is no English version) in 15 tweets:

  As a reminder, these were the questions posed by the Austrian court:

1. Is Article 8(3) of Directive 2001/29/EC (the Information Directive) to be interpreted as meaning that a person who makes protected subject-matter available on the internet without the rightholder's consent (Article 3(2) of the Information Directive) is using the services of the access providers of persons seeking access to that protected subject-matter? [AG's suggested answer: Yes.]

2. If the answer to the first question is in the negative: Are reproduction for private use (Article 5(2)(b) of the Information Directive) and transient and incidental reproduction (Article 5(1) of the Information Directive) permissible only if the original of the reproduction was lawfully reproduced, distributed or made available to the public? [AG's suggested answer: N/A.]

3. If the answer to the first question or the second question is in the affirmative and an injunction is therefore to be issued against the user's access provider in accordance with Article 8(3) of the Information Directive:

Is it compatible with Union law, in particular with the necessary balance between the parties' fundamental rights, to quite simply prohibit an access provider from allowing its customers access to a certain website (without ordering specific measures) as long as the material available on that website is provided exclusively or predominantly without the rightholder's consent, if the access provider can avoid incurring preventive penalties for breach of the prohibition by showing that it had nevertheless taken all reasonable measures? [AG's suggested answer: No.]

4. If the answer to the third question is in the negative: Is it compatible with Union law, in particular with the necessary balance between the parties' fundamental rights, to require an access provider to take specific measures to make it more difficult for its customers to access a website containing material that is made available unlawfully if those measures require not inconsiderable costs and can easily be circumvented without any special technical knowledge? [AG's suggested answer: It can be. The national court must balance the various competing fundamental rights.]

Hat tip to Thijs van den Heuvel (@TMVDH) for Storifying my tweets.

1 comment:

  1. From an Austrian point of view the whole thing could indeed have been worse and the opinion for sure has its upsides (freedom of speech, no general prohibition but instrument-specific). The 'intermediary' might for sure need further discussion.

    I am however very sceptical about the ('ex post') balance of rights-test as such a test could only be carried out by a court once an ISP has been willing to fight over this matter in court (again).
    Big providers may do so, but for the 400+ small and mid size access ISPs this poses quite a challenge / expensive gamble. Knowing the rights holders I fear that it won't take them long to unleash an avalanche of cease and desists notices... . But let's wait and see.

    I personally however can't help but wonder whether the Austrian position (65) in this case reflects the opinion of all the whole government or just of a particular ministry.


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