The case undermines previous thinking on how the E-Commerce
Directive and the Copyright Directive work together, said Struan
Robertson, a technology lawyer with Pinsent Masons, the law firm
behind OUT-LAW.COM.
"The Copyright Directive says copyright owners should be able to
get a court order against intermediaries whose services are used
for piracy – which was the argument used in this case; but that
Directive also says its provisions should not prejudice the
E-commerce Directive," said Robertson. "That law says ISPs
generally are not responsible for the activity of their customers
and also that member states must not impose any general obligation
on ISPs to police their services for illegal activity."
The Court of First Instance in Belgium made the controversial
ruling against ISP Scarlet Extended. It said that the ISP must
block or filter out traffic on its network which it thinks is
copyright-infringing material. It must introduce suitable
'technical instruments' to do this within six months.
It is believed to be the first time that a European court has
ruled that an ISP must block such traffic. ISPs have until now been
granted similar status to a phone company or a post office in that
they are a conduit for information but are not responsible for the
contents of that information, just as the post office is not
responsible for the contents of a letter or package.
Author and composer representative body the Belgian Society of
Authors, Composers and Publishers (SABAM) brought the case against
Scarlet.
"A lot of Internet users are massively downloading copyrighted
works, by way of P2P software, without the authors, composers and
publishers having authorised it or having been remunerated," said a
statement from SABAM. "If all Belgian Internet access providers
would adopt the technical measures proposed by the expert so that
P2P software could no longer be used for exchanging copyright
works, this would put an end to the illegal traffic as Belgium is
concerned."
The body said that the duty imposed by the court is not a
general obligation to monitor the network.
International music industry lobby group the International
Federation of the Phonographic Industry (IFPI) said that it hoped
the ruling would be replicated across Europe.
"This is a decision that we hope will set the mould for
government policy and for courts in other countries in Europe and
around the world," said IFPI chief executive John Kennedy. "This is
an extremely significant ruling which bears out exactly what we
have been saying for the last two years – that the internet’s
gatekeepers, the ISPs, have a responsibility to help control
copyright-infringing traffic on their networks. The court has
confirmed that the ISPs have both a legal responsibility and the
technical means to tackle piracy."
The court ruled that ISPs are technically able to screen out
such material, and ordered that Scarlet do so within six
months.
The court put the case on hold in 2004 while it sought expert
advice on the technical feasibility of blocking material. The
court's expert said that there were 11 ways in which the material
could be blocked, seven of which were applicable to Scarlet's
network, according to SABAM.
The ruling could influence courts in other EU member states,
though it will have been based on the particular Belgian laws which
implemented the E-commerce and Copyright Directives, so its impact
could be limited.
Robertson said that the ruling prioritises the Copyright
Directive over the E-commerce Directive in a manner that will shock
the ISP industry. "These laws were designed to complement each
other, but there was always a risk of a collision like this."
OUT-LAW had not seen a copy of the judgment at the time of
writing.
