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CJEU - C 314/12 / Opinion

UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft GmbH

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Decision date:
Key facts of the case:
The present case affords the Court the opportunity to develop further its case‑law on the protection of copyright on the Internet. (2) In addition to the content and procedure for the issuing of an injunction pursuant to Article 8(3) of Directive 2001/29/EC, (3) it concerns the question whether an injunction can be issued at all against an Internet service provider (‘ISP’) which provides Internet access not to the operator of a website massively infringing copyright, but only to users accessing that website.
Results (sanctions) and key consequences of the case:
The Court should answer the questions referred by the 
Oberster Gerichtshof as follows:
  1. Article 8(3) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted to the effect that a person who makes protected subject‑matter available on the Internet without the consent of the rightholder and thus infringes rights under Article 3(2) of Directive 2001/29 uses the services of the ISPs of those persons who access that protected subject‑matter.
  2. It is not compatible with the weighing of the fundamental rights of the parties that is necessary under Article 8(3) of Directive 2001/29 to prohibit an ISP, in quite general terms and without ordering specific measures, from allowing its customers access to a particular copyright‑infringing website. This applies even if the ISP can avoid incurring coercive penalties for breach of that prohibition by showing that it has taken all reasonable steps to comply with the prohibition.
  3. A specific blocking measure relating to a specific website, which is imposed on an ISP pursuant to Article 8(3) of Directive 2001/29, is not, in principle, disproportionate solely because it entails not inconsiderable costs but can easily be circumvented without any special technical knowledge. It is for the national courts, in a specific case, taking into account all relevant circumstances, to weigh the fundamental rights of the parties against each other and thus strike a fair balance between those fundamental rights.