In a decision released on March 27th, the Court of Justice of the European Union (CJEU) ruled that Internet Service Providers (ISPs) within the EU can now block piracy sites that contain copyrighted material.

The decision comes from Constantin Film and Wega v. UPC Telekabel Wien, a case referred to the CJEU by the Austrian Supreme Court on June 15, 2012. Commonly known as the “kino.to” case, the original dispute was brought by Constantin Film and Wega, alleging that UPC Telekabel Wien (an Austrian ISP) failed to block access to copyrighted material on the largest piracy website in German-speaking Europe, kino.to. The Austrian Supreme Court sent the case to the CJEU to clarify issues regarding the EU Copyright Directive and ISPs’ ability to block infringing websites.

Upon referral, the CJEU rejected UPC’s argument that it did not have an obligation to block copyright-infringing websites because it was not responsible for the infringing material and held no financial interests in kino.to. In rejecting this argument, the CJEU set a clear framework under which ISPs can operate and sent a message to the European community that ISPs are best suited to monitor online copyright infringement.

The Motion Picture Association (MPA) welcomed the decision, citing the decision as a milestone in the efforts of rightsholders to effectively enforce their copyrights. The President and Managing Director of the MPA, Chris Marcich, stated, “I am particularly encouraged by the strong stance the CJEU has taken in relation to the responsibility of intermediaries to address copyright infringement. A sustainable Internet that benefits all must operate fairly, with proportionate and balanced rules.”

The MPA was not alone in its support of the recent decision by the CJEU. The International Federation of the Phonographic Industry (IFPI) agreed that “[t]he decision by the [CJEU] confirming that website blocking does not infringe fundamental rights in the EU is an important clarification that will strengthen the ability of the music and other creative industries to tackle piracy.

This decision also represents a shift in the method of online copyright enforcement in Europe. Previously, countries such as France, Ireland, and the UK implemented graduated response systems to battle rapidly increasing infringement online. Through these systems, rightsholders  notify ISPs as to infringing content online and ISPs respond by sending a series of alerts to the user of the infringing content, notifying the user that their activity is illegal and could be subject to further sanctions. After a series of alerts, the ISP holds the right to impose sanctions on the user, ranging from capping bandwidth to suspension of Internet service. While graduated response systems have faded in some countries, like France, the CJEU’s decision on March 27th has demonstrated a more aggressive focus on copyright enforcement. In Europe, ISPs now have the ability to skip the notice procedure and completely block websites containing infringing material.

Could the CJEU’s decision reach beyond the European Union?

Dustin Kovacic

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