“after the verdict of the CJEU: have they copied your work? Demand blocking the websites” – Marek Wiński for dziennik gazeta prawna
On the 22nd of April 2014 Dziennik Gazeta Prawna published an interview with a partner in the law firm Hasik, Wiński and Partners, attorney at law Marek Wiński, regarding the protection of copyright in the internet. The pretext to this conversation was the verdict of the Court of Justice of the EU as a result of legal action brought by Film Verleih GmbH and Constantin Wega Filmproduktionsgesellschaft GmbH against Telekabel Wien GmbH (REF Act C-314/12). In accordance with the above-mentioned verdict, a passive provider of internet access services can be ordered to block the website which publishes materials infringing the copyright of third parties. The European Court of Justice found that ordering the internet provider to block access to a website containing illegal content does not infringe any rights of economic freedom and access to information.
Marek Wiński indicates that, although the interpretation of community law made by the CJEU is binding for the national courts of all the Member States, the application of the above verdict in practice may encounter significant difficulties due to the contradiction of European directives. The directive of electronic commerce (2000/34) discharges passive internet access providers from any liability for the content sent by them. The above discharge of liability applies to those access providers who do not initiate the transmission, do not choose the recipient of data, or modify them. On the other hand, the directive on the harmonisation of certain aspects of copyright and related rights in the information society (2001/29) states that Member States may require the internet service providers to block the website which publishes materials infringing the copyright of any third party. The verdict of the European Court of Justice specifies that the warrant to block access to illegal content may be addressed to the passive internet access provider (the so-called access provider). As Marek Wiński sums up: "It is as if a chain of petrol stations was responsible for bank robbery, because the van, which transported the stolen loot, was fuelled at a station belonging to the chain."
The situation is more explicit in case of hosting providers. As Marek Wiński states in the interview for Dziennik: "In Polish system, one can request the court to order the hosting providers to block the website containing illegal content. Since such entity, unlike a signal provider, stores users’ information on their servers.”
Source: Maria Kamila Puch, Po wyroku ETS: Skopiowali twój utwór? Zażądaj blokady witryn WWW, Dziennik Gazeta Prawna, issued on 22 April 2014 (no. 77),
http://edgp.gazetaprawna.pl/index.php?act=mprasa&sub=article&id=479908 [aaccessed: 28.04.2014 r.]