Advocate General Pedro Cruz Villalón said that ISPs that provide internet access to infringing sites can be regarded as intermediaries under the Copyright Directive, and can therefore be the subject of an injunction.
But Cruz Villalón said that any injunction must refer to specific blocking measures and balance the interests of the parties. It would be incompatible with the weighing of those rights, for example, ban an ISP generally and without ordering specific measures from allowing its customers to access a particular website that infringes copyright. He added that rightholders must, where possible, claim directly against the operators of the illegal website or their providers.
The Advocate General’s opinion relates to a dispute between copyright owner Constantin Film Verleih and Wega Filmproduktionsgesellschaft and Austrian internet provider UPC Telekabel Wien. Constantin Film had asked the Austrian courts to injunct UPC from allowing its customers to access kino.to, a website that allows users to access movies posted without the copyright owners’ consent.
The Austrian Supreme Court has asked the CJEU to rule whether UPC can be regarded as an intermediary in this case, and to clarify how it should issue an injunction, if it is permitted to do so.
