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Copyright Infringement by an Internet Service Provider?

Tuesday, 20 March 2012

In November 2011 the European Court of Justice (ECJ) delivered a landmark ruling regarding potential obligations imposed on Internet Service Providers (ISP) to prevent copyright infringement. The court ruled that national courts could not impose obligations on ISPs to install, at their own cost, pre-emptive filtering systems that screen all user content in an attempt to identify copyright infringing material.

The judgement arose out of an attempt by SABAM, the Belgian collection society, to force Scarlet, an ISP, to prevent online copyright infringement relating to peer-to-peer file sharing by its users. SABAM sought via an injunction to force Scarlet to introduce a system that would filter its user content and block the sharing of material in which it had copyright. Scarlet appealed the original decision of the Belgian court and the issue was referred to the ECJ.

The ECJ drew upon several points in formulating its judgement:

  1. The injunction would have required the ISP to monitor all of its customers’ content in order to identify infringing material. This requirement would entail a, ‘general obligation on providers to monitor’. Such general monitoring obligations are prohibited under Article 15 of the E-Commerce Directive.
  2. A fair balance must be struck between protecting the rights of intellectual property owners and the rights of ISPs to conduct their business. The injunction failed to find the appropriate balance because the proposed filtering system was too wide in scope. It was not limited by cost, complexity or time –it would have applied to current and future works and their infringement. Therefore it breached Article 3 of the E-Commerce Directive.
  3. The injunction would have required all customer content, whether lawful or unlawful, to be monitored and would have entailed systematic analysis of user information. Such analysis would have included the identification of individual IP addresses enabling individuals to be precisely identified. This would unlawfully breach users’ fundamental right to protection of their personal data. In addition, the failure of the injunction to distinguish lawful from unlawful content could lead to lawful content being blocked, undermining users’ freedom of expression and information.

The conclusion of the ECJ in this case appears the significantly reduce the threat of general obligations being imposed by national courts on ISPs to monitor their users for copyright infringement. The rights of intellectual property owners must be balanced with the right to conduct business, the right to protection of personal information and freedom of information.

If you need advice regarding copyright or other intellectual property issues, Rollingsons has experienced intellectual property lawyers who can help you. For more information please contact James Crighton via e-mail or by phone on 0207 611 4848.