The Closing of the Net  "original and valuable"  Times Higher Education

Today the European Court of Justice (ECJ) will hear a case which will have wide-ranging implications for the Internet and its future.

 

The case  - Sabam versus Scarlet - concerns whether or not an ISP may be asked by a court to filter and block  content for the purpose of copyright enforcement.  At first, it was just one of a series of local cases being filed by the national collecting society or rights-holder group, in order to get a legal precedent for filtering and copyright enforcement, which they could hold up to policy-makers.

But four years' on, with the filtering and blocking  argument raging ever louder, the questions raised by this case begin to resonate more widely.

 If the court rules that EU

law would permit it, then the floodgates will open and the rights-holders will spill into courts around the EU asking for  blocking orders. 

 

The case has been running since 2007, and it concerns a Belgian ISP, known as Scarlet (but now owned by Belgacom) and the Belgian collecting society, Sabam. Scarlet was an easy target,  a small ISP, with low revenues and not financially well-off.

 

Sabam was demanding that Scarlet should enforce its members' copyright against peer-to-peer file-sharers. That is, it wanted Scarlet to monitor traffic  for music (P2P) files travelling over the network and to block any that infringed Sabam's copyright.

 

The high court in Brussels had previously ruled that Scarlet should implement a filtering system, which would detect the files containing music in Sabam's repertoire. On finding these files, Scarlet was being asked to block their transmission. Scarlet was also given financial penalties if it did not do so within a given timescale.  However, the system which the court wanted Scarlet to put in - Audible Magic - did not work on Scarlet's network. Scarlet also appealed the decision.

 

Now the case has gone to the European Court of Justice (ECJ) for a preliminary ruling.

The referral asks the court to answer a question on a legal point which the Brussels court is struggling with.  The question has a complex structure, but in essence it  is asking whether a national court in the EU has the power to mandate an ISP to filter  content on its network (and specifically peer-to-peer traffic)  in order to identify music and audio-visual files on behalf of a third party, and if a court also has the power to ask that ISP to block those files in transit?

To my reading of the referred question there are a few caveats in it. It states "a musical, cinematographic or audio-visual work  in respect of which the applicant claims to hold rights, .." indicating that the court may have to consider the scenario where there may be some uncertainty of the collecting society's ownership or representation  of the rights.   Such a view would figure with some of the criticisms I have seen of collecting societies who do not know their own repertoire.

Also, it asks whether the ISP should install the filtering equipment at its own cost, as a preventive measure. I see possible implications for ACTA there.

Then there is a follow-up question, which asks  if it is within the power of a national court to order such filtering and blocking, then should it apply the legal principle of proportionality when taking its decision.

The court's ruling will not be expected for a couple of months - it is only the hearing today -  so we will have to wait in suspense for a bit longer. What's clear is that the ECJ decision will give a strong signal as to the acceptability - or not - of  filtering and blocking orders in  Europe.

 

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Sabam v Scarlet, European Court of Justice, Questions referred 

 

1.  Do Directives 2001/29 ( 1 ) and 2004/48, ( 2 ) in conjunction with Directives 95/46, ( 3 ) 2000/31 ( 4 ) and 2002/58, ( 5 ) construed in particular in the light of Articles 8 and 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, permit Member States to authorise a national court, before which substantive proceedings have been brought and on the basis merely of a statutory provision stating that: ‘They [the national courts] may also issue an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right’, to order an Internet Service Provider (ISP) to introduce, for all its customers, in abstracto and as a preventive measure, exclusively at the cost of that ISP and for an unlimited period, a system for filtering all electronic communications, both incoming and outgoing, passing via its services, in particular those involving the use of peer-to-peer software, in order to identify on its network the sharing of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold rights, and subsequently to block the transfer of such files, either at the point at which they are requested or at which they are sent?

 

2.  If the answer to the question in paragraph 1 is in the affirmative, do those directives require a national court, called upon to give a ruling on an application for an injunction against an intermediary whose services are used by a third party to infringe a copyright, to apply the principle of proportionality when deciding on the effectiveness  nd dissuasive effect of the measure sought? 

 

More comment here from PC Inpact ( in  French).

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This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2011)   Sabam v Scarlet -   will the ECJ open Europe to filtering orders? http://www.iptegrity.com  13 January 2011

 

 

 

 

 

 

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Iptegrity.com is the website of Dr Monica Horten, European expert on Internet policy and Visiting Fellow at the London School of Economics & Political Science. She is an independent expert on the Council of Europe Committee on Cross-border flow of Internet traffic and Internet freedom (MSI-INT). She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy. Iptegrity has a core readership in the Brussels policy community, and has been cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity

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