03/02/2020 CURIA - Documents Article 3 of the same directive, headed ‘Right of communication to the public of works and right of making available to the public other subject-matter’, provides in paragraph 2: ‘Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them: … for the producers of the first fixations of films, of the original and copies of their films; …’ Article 8 of Directive 2001/29, headed ‘Sanctions and remedies’, states in paragraph 3: ‘Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.’ Austrian law Paragraph 18a(1) of the Law on copyright (Urheberrechtsgesetz) of 9 April 1936 (BGBl. 111/1936), as amended by the new law of 2003 on copyright (Urheberrechtsgesetz-Novelle 2003, BGBl. I, 32/2003, ‘the UrhG’), reads: ‘The author has the exclusive right to make the work available to the public, by wire or wireless means, in such a way which allows members of the public to access it from a place and at a time chosen by them.’ Paragraph 81(1) and (1a) of the UrhG state: ‘(1) A person who has suffered an infringement of any exclusive rights conferred by this Law, or who fears such an infringement, shall be entitled to bring proceedings for a restraining injunction. Legal proceedings may also be brought against the proprietor of a business if the infringement is committed in the course of the activities of his business by one of his employees or by a person acting under his control, or if there is a danger that such an infringement will be committed; Paragraph 81(1a) shall apply mutatis mutandis. (1a) If the person who has committed such an infringement, or by whom there is a danger of such an infringement being committed, uses the services of an intermediary for that purpose, the intermediary shall also be liable to an injunction under subparagraph (1). …’ Paragraph 355(1) of the Code of Enforcement (Executionsordnung) states: ‘Enforcement against the person obligated to desist from an activity or to tolerate the carrying out of an activity shall take place, at the time of consent to enforcement, by the imposition by the enforcement court, upon application, of a fine for any non-compliance after the obligation became executory. In the event of further noncompliance, the enforcement court shall, upon application, impose a further fine or a period of imprisonment of up to one year in total. …’ It is apparent from the explanations given by the referring court in its request for a preliminary ruling that, at the stage of the enforcement procedure, the addressee of the prohibition can argue, in order to avoid liability, that he has taken all of the measures that could be expected of him in order to prevent the result prohibited. The dispute in the main proceedings and the questions referred for a preliminary ruling Having established that a website was offering, without their agreement, either a download or ‘streaming’ of some of the films which they had produced, Constantin Film and Wega, two film production companies, referred the matter to the court responsible for hearing applications for interim measures with a view to obtaining, on the basis of Article 81(1a) of the UrhG, an order enjoining UPC Telekabel, an internet service provider, to block the access of its customers to the website at issue, inasmuch as that site makes available to the public, without their consent, cinematographic works over which they hold a right related to copyright. By order of 13 May 2011, the Handelsgericht Wien (Commercial Court, Vienna) (Austria) prohibited UPC Telekabel from providing its customers with access to the website at issue; that prohibition was to be carried out in particular by blocking that site’s domain name and current IP (‘Internet Protocol’) address and any other IP address of that site of which UPC Telekabel might be aware. In June 2011, the website at issue ceased its activity following an action of the German police forces against its operators. By order of 27 October 2011, the Oberlandesgericht Wien (Higher Regional Court, Vienna) (Austria), as an appeal court, partially reversed the order of the court of first instance in so far as it had wrongly specified the means that UPC Telekabel had to introduce in order to block the website at issue and thus execute the injunction. In order to reach that conclusion, the Oberlandesgericht Wien first of all held that Article 81(1a) of the UrhG must be interpreted in the light of Article 8(3) of Directive 2001/29. It then held that, by giving its customers access to content illegally placed online, UPC Telekabel had to be regarded as an intermediary whose services were used to infringe a right related to copyright, with the result that Constantin Film and Wega were entitled to request that an injunction be issued against UPC Telekabel. However, as regards the protection of copyright, the Oberlandesgericht Wien held that UPC Telekabel could only be required, in the form of an obligation to achieve a particular result, to forbid its customers access to the website at issue, but that it had to remain free to decide the means to be used. UPC Telekabel appealed on a point of law to the Oberster Gerichtshof (Supreme Court) (Austria). In support of its appeal, UPC Telekabel submits inter alia that its services could not be considered to be used to infringe a copyright or related right within the meaning of Article 8(3) of Directive 2001/29 because it did not have any business relationship with the operators of the website at issue and it was not established that its own customers acted unlawfully. In any event, UPC Telekabel claims that the various blocking measures which may be introduced can all be technically circumvented and that some of them are excessively costly. In those circumstances, the Oberster Gerichtshof decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: Is Article 8(3) of Directive 2001/29 … to be interpreted as meaning that a person who makes protected subjectmatter available on the internet without the rightholder’s consent [for the purpose of Article 3(2) of Directive 2001/29] is using the services of the [internet] access providers of persons seeking access to that protected subject-matter? curia.europa.eu/juris/document/document.jsf?text=&docid=149924&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=4079936 2/6