Debate around online copyright enforcement has intensified over the past few years, particularly with regard to blocking injunctions, and will likely be even more so this year.
The recent decision of the Court of Justice of the European Union (CJEU) in Telekabel [here and here] held that such measures are compatible with EU law, and that it is left to the concerned internet service providers (ISPs) to determine how best to achieve the result sought by the relevant rightholder(s).
In the UK several website blocking orders have been issued since the introduction of s97 CDPA, and via the Cartier decision [here and here] it is now clear that such measures are also available against websites that advertise and sell counterfeit goods.
But how does website blocking work in other EU Member States, eg Greece?
Katfriend and fellow blogger Yannos Paramythiotis (@Paramythiotis_Y) reports on a recent decision of the District Court of Athens on this very issue.
Here's what Yannos writes:
"With a 49 page decision (13478/2014) on 22 December 2014 that leaked on the internet before its official release, the District Court of Athens dismissed the application of five Greek collective management organisations for an injunction that would oblige Greek ISPs to block pirate sites.
The dismissal was justified on fundamental freedoms grounds and conflict with the principle of proportionality.
Grammo, Athina, OSDEL, AEPI and EPOE are Greek collecting societies managing copyrights and related rights. Relying on Art. 64A of the Greek Copyright Act, by which Greece implemented Art. 8(3) of the InfoSoc Directive into its own national law, they requested that the defendant ISPs should enforce technical measures to block websites infringing the rights of their members. These included notorious torrent sites like thepiratebay.se, kat.ph and isohunt.com and local online forum sites that provide their members with hyperlinks leading to sites where infringing content can be downloaded (like Rapidshare, Mediafire etc). One of the collective societies (Grammo, representing phonogram producers) went further and requested that the ISPs should be forced to deliver all archives containing Internet traffic data relating to those sites. This information would then be used in trial following a lawsuit against the owners of the infringing websites.
|Copyright infringement |
does not trump
data protection in Greece
The Court’s decision
In relation to the request for exposure of traffic data, the court held that the right of the collective societies to request an order for communication of documents, according to the Greek laws implementing Art. 6 of the Enforcement Directive and Art. 15(2) of the Ecommerce Directive can be only exercised in compliance with the legislation regarding data protection and confidentiality of communications.
According to that legislation ISPs are obliged to reveal the identities of the persons behind the IP addresses and give information about Internet traffic only in regard to certain specific major offences listed in an exclusive manner in Art. 4 of Law 2225/1994. Copyright infringement is not within that list.
As long as the list is not amended, copyright and related rights holders are practically deprived of that legal instrument. In view of that, the significance of blocking orders is even greater for rights holders. It is worth mentioning that the Greek culture minister proposed the inclusion of copyright infringement in the aforesaid list through an amendment proposal brought to the Greek Parliament on 22 December 2014. The proposal was however withdrawn following harsh criticism from the opposition and some MPs of the coalition government parties.
Concerning the request to block access to specific websites the court’s reasoning is –in its main points- as follows:
- Linking does not constitute copyright infringement neither as an act of reproduction nor as an act of making available to the public. The Court made no reference to Svensson [Katposts here] but only to pre-Svensson outdated theory. Did the judge disagree with the CJEU regarding the nature of the act of linking or was she simply not familiar with the decision [that would be in contrast with Dutch Advocate Generals, who are instead very much familiar with Svensson and its progeny]? Here’s a lost opportunity to have Greek case law on whether linking to unlawful content is communication to a “new” public or not.
|Washington scandals? |
A walk in the park compared to
- The content distributed through p2p technology is not necessarily infringing. It could include free information or works. This would be either because these lack originality or because they have fallen into the public domain or because their communication to the public is permitted by the authors, eg under a creative commons license. The same can be said in relation to sites giving access to torrent files or links. The fact that an IP/DNS blocking measure cannot discriminate between infringing and legal content can deprive Internet users of access to online information, thus violating their freedom to information and freedom to participate in the Information Society (see Art. 5A of the Greek Constitution). This is the CJEU reasoning in Scarlet [and also in Telekabel]. In that case the CJEU ruled on the legality of content filtering, ie the installation of a system that would monitor all the electronic communications made with the use of p2p software through the network of the ISP. The Greek court extended the decision’s reasoning to IP/DNS filtering. The websites could also contain lawful data. Users’ access rights prevail over IP rights. The court equated the legal implications of two different technological measures (content filtering – IP/DNS filtering). Is this justified? In order for one to decide, one would have to know at least the lawful content/infringing content ratio of the websites.
- The measure of blocking is not suitable to achieve protection of the rights holders, because the said websites can be easily transferred to a new IP and DNS. This fact, in combination with the disproportionate limitation of users’ and ISPs’ rights, leads to a conflict between the measure sought and the principle of proportionality.
|Be specific, please!|
- Such a measure can only be acceptable if it leads to the blocking of a specific part of a website but not of the website as a whole. So this means that in contrast to “www.example.gr” the blocking of “www.example.gr/piratedmovie” is OK. With that assessment the Court overcame the obstacle of freedom of information and gave rights holders the ability to request the blocking of specific parts of websites that distribute infringing content. The rest of the website that offers legitimate content remains accessible. No freedom of information or freedom to participate in the Information Society violation. Do we have the privilege of creating the term “deep-blocking”?
Apart from the above mentioned the court “borrowed” from Scarlet also in regard to the antithesis of blocking measures to Art. 15(1) of the Ecommerce directive and to the ISPs’ freedom to conduct business. The nature of the requested measure makes it difficult to follow such an opinion. Website blocking is an inexpensive “one off” measure while content filtering is an on-going costly procedure that covers all future data transmission through a specific technology (p2p).
To sum up: the Athens Court rejected blocking measures in all cases with the sole exception of blocking specific parts of a website. The decision is in contrast with the earlier – and the first one ever in Greece - 4658/2012 decision of the same Court, which found that the requested blocking of two websites is proportionate and in compliance with constitutional rights."
Website blocking in Greece: how does it work there? Reviewed by Eleonora Rosati on Wednesday, January 28, 2015 Rating: