03/02/2020
CURIA - Documents
the Community provisions governing the substantive law on intellectual property … or Directive [2000/31], in
general, and Articles 12 to 15 of Directive [2000/31] in particular;
…’
Article 3 of Directive 2004/48 provides:
‘1.
Member States shall provide for the measures, procedures and remedies necessary to ensure the
enforcement of the intellectual property rights covered by this Directive. Those measures, procedures and remedies
shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable time-limits
or unwarranted delays.
2.
Those measures, procedures and remedies shall also be effective, proportionate and dissuasive and shall be
applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards
against their abuse.’
Article 11 of Directive 2004/48 states:
‘Member States shall ensure that, where a judicial decision is taken finding an infringement of an intellectual
property right, the judicial authorities may issue against the infringer an injunction aimed at prohibiting the
continuation of the infringement. Where provided for by national law, non-compliance with an injunction shall,
where appropriate, be subject to a recurring penalty payment, with a view to ensuring compliance. Member States
shall also ensure that rightholders are in a position to apply for an injunction against intermediaries whose services
are used by a third party to infringe an intellectual property right, without prejudice to Article 8(3) of Directive
[2001/29].’
National law
Article 87(1), first and second subparagraphs, of the Law of 30 June 1994 on copyright and related rights
(Moniteur belge of 27 July 1994, p. 19297) states:
‘The President of the Tribunal de première instance (Court of First Instance) … shall determine the existence of any
infringement of a copyright or related right and shall order that it be brought to an end.
He may also issue an injunction against intermediaries whose services are used by a third party to infringe a
copyright or related right.’
Articles 18 and 21 of the Law of 11 March 2003 on certain legal aspects of information society services (Moniteur
belge of 17 March 2003, p. 12962) transpose Articles 12 and 15 of Directive 2000/31 into national law.
The dispute in the main proceedings and the questions referred for a preliminary ruling
SABAM is a management company which represents authors, composers and editors of musical works in
authorising the use of their copyright-protected works by third parties.
Scarlet is an internet service provider (‘ISP’) which provides its customers with access to the internet without
offering other services such as downloading or file sharing.
In the course of 2004, SABAM concluded that internet users using Scarlet’s services were downloading works in
SABAM’s catalogue from the internet, without authorisation and without paying royalties, by means of peer-to-peer
networks, which constitute a transparent method of file sharing which is independent, decentralised and features
advanced search and download functions.
On 24 June 2004, SABAM accordingly brought interlocutory proceedings against Scarlet before the President of the
Tribunal de première instance, Brussels, claiming that that company was the best placed, as an ISP, to take
measures to bring to an end copyright infringements committed by its customers.
SABAM sought, first, a declaration that the copyright in musical works contained in its repertoire had been
infringed, in particular the right of reproduction and the right of communication to the public, because of the
unauthorised sharing of electronic music files by means of peer-to-peer software, those infringements being
committed through the use of Scarlet’s services.
SABAM also sought an order requiring Scarlet to bring such infringements to an end by blocking, or making it
impossible for its customers to send or receive in any way, files containing a musical work using peer-to-peer
software without the permission of the rightholders, on pain of a periodic penalty. Lastly, SABAM requested that
Scarlet provide it with details of the measures that it would be applying in order to comply with the judgment to be
given, on pain of a periodic penalty.
By judgment of 26 November 2004, the President of the Tribunal de première instance, Brussels, found that
copyright had been infringed, as claimed by SABAM, but, prior to ruling on the application for cessation, appointed
an expert to investigate whether the technical solutions proposed by SABAM were technically feasible, whether they
would make it possible to filter out only unlawful file sharing, and whether there were other ways of monitoring the
use of peer-to-peer software, and to determine the cost of the measures envisaged.
In his report, the appointed expert concluded that, despite numerous technical obstacles, the feasibility of filtering
and blocking the unlawful sharing of electronic files could not be entirely ruled out.
By judgment of 29 June 2007, the President of the Tribunal de première instance, Brussels, accordingly ordered
Scarlet to bring to an end the copyright infringements established in the judgment of 26 November 2004 by making
it impossible for its customers to send or receive in any way files containing a musical work in SABAM’s repertoire
by means of peer-to-peer software, on pain of a periodic penalty.
Scarlet appealed against that decision to the referring court, claiming, first, that it was impossible for it to comply
with that injunction since the effectiveness and permanence of filtering and blocking systems had not been proved
and that the installation of the equipment for so doing was faced with numerous practical obstacles, such as
problems with the network capacity and the impact on the network. Moreover, any attempt to block the files
concerned was, it argued, doomed to fail in the very short term because there were at that time several peer-topeer software products which made it impossible for third parties to check their content.
Scarlet also claimed that that injunction was contrary to Article 21 of the Law of 11 March 2003 on certain legal
aspects of information society services, which transposes Article 15 of Directive 2000/31 into national law, because
it would impose on Scarlet, de facto, a general obligation to monitor communications on its network, inasmuch as
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