DLA PIPER IPT ALERT
By Ruth Hoy and Patrick Van Eecke
As was the case in Newzbin 2, a national court, in deciding whether to order an ISP to implement technical measures to deal with copyright infringement on the part of the ISP's customers, will need to consider whether the proposed measures are proportionate. In doing so, it will need to strike a fair balance between the protection of intellectual property and that of a freedom to conduct a business enjoyed by ISPs.
On 24 November 2011, the CJEU gave its judgment in a case brought by SABAM, a Belgian collecting society, against Scarlet Extended SA (formerly Tiscali SA).
In the national court proceedings, SABAM, which represents the interests of copyright owners in musical compositions had brought action to address the problem of P2P file sharing of digital musical files by Scarlet's customers. The Court of First Instance in Brussels accepted that the activities on Scarlet's customers inevitably involved copyright infringement of works within SABAM's repertoire, and that it had jurisdiction to order the prevention of such activities. It appointed an expert to look into the feasibility of certain technical measures which could be implemented by Scarlet.
Following the report of the Court appointed expert, and in accordance with its powers under Article 87(1) of the Belgian Law of 30th June 1994 on Copyright and Rights, as amended by the Law of 10 May 2007, the Belgian court ordered that Scarlet should bring an end to the infringements by making it impossible for its customers to send or receive files containing a musical work in SABAM's repertoire by means of P2P software, in particular by using Copysense by Audible Magic.
The decision was appealed by Scarlet, who argued that:
The decision was contrary to EU laws on privacy and freedom of expression;
The decision was contrary to Article 12 of the E-Commerce Directive (which provides immunity to service providers who assist transmission within a communications network); and
The decision was contrary to Article 15 of the E-Commerce Directive (which provides that "Member States shall not impose a general obligation on providers to monitor the information that they transmit or store nor a general obligation actively to seek factors or circumstances indicating legal liability").
In considering the case, the Brussels Cour d-Appel referred two questions to the CJEU, questioning whether it was contrary to EU law to require an ISP to introduce such a wide-ranging injunction.
In its judgment, the CJEU has confirmed that the injunction in the SABAM case went too far and that it would be contrary to EU law for a national court to order such a wide-ranging injunction which was not limited by (i) time; (ii) cost; (iii) technical effectiveness of the measure proposed; (iv) type of communication, without distinguishing between lawful and unlawful content. In particular, the Order must not go so far as to actively require ISPs to monitor the data of each of its customers in order to prevent any future infringement of IP rights.
As was the case in Newzbin 2, a national court, in deciding whether to order an ISP to implement technical measures to deal with copyright infringement on the part of the ISP's customers, will need to consider whether the proposed measures are proportionate. In doing so, it will need to strike a fair balance between the protection of intellectual property and that of a freedom to conduct a business enjoyed by ISPs.
On 24 November 2011, the CJEU gave its judgment in a case brought by SABAM, a Belgian collecting society, against Scarlet Extended SA (formerly Tiscali SA).
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