19.5.2014

Official Journal of the European Union

C 151/2

(Case C-314/12) (<span class="super">1</span>)

((Reference for a preliminary ruling - Approximation of laws - Copyright and related rights - Information society - Directive 2001/29/EC - Website making cinematographic works available to the public without the consent of the holders of a right related to copyright - Article 8(3) - Concept of ‘intermediaries whose services are used by a third party to infringe a copyright or related right’ - Internet service provider - Order addressed to an internet service provider prohibiting it from giving its customers access to a website - Balancing of fundamental rights))

2014/C 151/02

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: UPC Telekabel Wien GmbH

Defendants: Constantin Film Verleih GmbH, Wega Filmproduktionsgesellschaft mbH

Re:

Request for a preliminary ruling — Oberster Gerichtshof — Interpretation of Articles 3(2), 5(1) and (2)(b), and 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 (OJ 2001 L 167, p. 10) — Internet site allowing illegal downloading of films — Right of the copyright holder of one of those films to require an Internet service provider to block its customers’ access to that specific site — Feasibility and proportionality of the blocking measures

Operative part of the judgment

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 as meaning that a person who makes protected subject-matter available to the public on a website without the agreement of the rightholder, for the purpose of Article 3(2) of that directive, is using the services of the internet service provider of the persons accessing that subject-matter, which must be regarded as an intermediary within the meaning of Article 8(3) of Directive 2001/29.

2.The fundamental rights recognised by EU law must be interpreted as not precluding a court injunction prohibiting an internet service provider from allowing its customers access to a website placing protected subject-matter online without the agreement of the rightholders when that injunction does not specify the measures which that access provider must take and when that access provider can avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures, provided that (i) the measures taken do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and (ii) that those measures have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject-matter that has been made available to them in breach of the intellectual property right, that being a matter for the national authorities and courts to establish.

(<span class="super">1</span>) OJ C 303, 6.10.2012.