In case C-314/12 confronting the UPC Telekabel telecommunications company with Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft GmbH, the EU’s General Attorney of the Court of Justice of the European Union (CJEU)decided that Internet Service Providers (ISPs) could be forced to block a web infringing an author’s rights (copyright) as a precautionary, preventive measure.
In the General Attorney’s conclusions on the preliminary question he was asked, he decreed that an Internet service provider “is deemed to be an intermediary to whose services a third party turns to infringe an author’s rights (copyright) and, therefore, is a potential addressee of precautionary measures”.
It is also laid down that this decision shall always be handed down by a judge and the “specific preventive blocking measures” shall be indicated in each case and a “just equilibrium between the interests opposing each other protected by fundamental rights shall always be guaranteed”. That is to say, the fundamental property right enjoyed by the owner of the author’s rights (copyright) is to be respected but also the provider’s position.
This measure means a technical and temporary solution to put an end to the infringements of rights. If the web host does not agree to remove the unlawful contents, the Attorney considers that the next link is the ISP who, although not within the procedure, is the only one who can finish with the infringement of rights.
If these conclusions turn into a CJEU decision, the European Union judges could base themselves thereon to ask telephone service providers for what is known as “dim-out”. This is a system whereby a web going against an author’s rights (copyright) cannot be accessed from Spain.
In the light of the General Attorney’s statements, the vice-president of the National Bar Experts’ association TIC (Enatic) considers that this is a quick, inexpensive solution for the ISPs and is good to the extent whereby its aim is to protect an author’s rights (copyright) but reiterates and insists on the importance of the judges faced with these cases doing so whilst deeply pondering their decisions. Some people cannot be overprotected and others be prematurely condemned, and he trusts that perhaps this is a point to be taken into consideration in the New Intellectual Property Act in order to eliminate certain cases of piracy.
Although this is the first time that a possible precautionary web blocking by service providers in matters of author’s rights is mentioned, this solution is not new in Spain since the measure had already been used beforehand in an industrial property matter (nikebrother.com, selling counterfeit clothes via internet) and another related to terrorism (apurtu.org web and the Harremanak and Apurtu Telebista YouTube channels.