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Thursday, 11 February 2010

Sabam v Tiscali goes to the ECJ on ISP filtering

The IPKat has heard from a discreet informant (he used to say he heard it from a little bird, but nowadays that makes some folk assume it was a Tweet) that there is a new reference for a preliminary ruling on an IP issue which will be furrowing the earnest brows of Europe's Greatest. While it's now a matter of public record that there is a reference, the form of the questions asked of the ECJ is not so easily available. The IPKat's informant fills the gap as follows:

"In its judgment of 28 January 2010, the Brussels court of appeal has referred questions to the ECJ in the framework of the appeal in Sabam v Tiscali (which was well reported at the time it was issued in 2007; an English translation is available here). The questions are as follows (translated from French):

1. Do Directives 2001/29 [copyright in the information society] and 2004/48 [the IP enforcement directive], read in conjunction with Directives 95/46 [on the processing of personal data], 2000/31 [the e-commerce directive] and 2002/58 [on privacy and electronic communications] and interpreted with regard to Articles 8 and 10 of the European Convention on Human Rights, allow Member States to authorize a national court, seized in a procedure on the merits and on solely on the basis of the legal provision which holds that “They [the national court] can equally impose a prohibitory injunction on intermediaries whose services are relied upon by a third party to infringe copyright or a neighbouring right”, to order an ISP to put into place, vis-a-vis all of its customers, in abstracto and as a preventive measure, at the expense of the ISP and without limitation in time, a system filtering all electronic communications, both incoming and outcoming, passing through its service, in particular by means of peer to peer software, with the aim to identify the circulation on its network of electronic files containing a musical, cinematographic or audiovisual work to which the claimant alleges to enjoy rights and to then block the transfer thereof, either at the request or at the time it is sent?

2. If question 1 is answered in the positive, do these directives require that the national court, seized to rule over a request for injunctive relief against an intermediary on whose services a third party relies to infringe a copyright, applies the principle of proportionality when it is asked to rule over the efficacy and the dissuasive effect of the requested measure?"
Please send your answers on a postcard to "ECJ, Luxembourg".

Official Filter site here
Filters for water here
Filters for cigarettes here

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