Blocking Orders due to Copyright Reasons violate Art. 16 of the Charter of Fundamental Rights of the European Union, as well as Art. 11, on freedom of expression and information.

Judgment of the OLG Cologne on network blocking (18 July 2014, 6 U 192/11)

The decision of the Appellate Court of Cologne represents the first further development of principles laid down by the CJEU in UPC Telekabel Wien GmbH v. Constantin Film Verleih GmbH. The close assessment of various EU Directives is of particular interest.

The close assessment of the various European Directives as well as the well considered balancing of fundamental rights is particularly remarkable.

This judgment might pave the way for limiting an over emphasis on copyright to the detriment of the freedom of information and the economic freedom of copyright providers.

The Claimants, leading music publishers, requested that the Defendant, a telecommunication service and access provider, block access to certain internet services which allow file sharing, alleging multiple violations of their copyrights. The Defendant denied any liability at which point the Claimants initiated an action to seek a blocking order.

The Court Stated that: While the Defendant could be qualified as an intermediary in the sense of Art. 8(3) of Directive 2001/29/EC this would be limited by Art. 15(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, which provided that Member States should not impose a  duty on ISPs to actively examine information which is transmitted through their services and to search for illegal acts

Moreover, any such measure would be incompatible with Art. 3 of Directive 2004/48/EC which stipulates that any measures to protect copyrights has to be fair and just.

The attempt to harmonise the economic freedom of access providers according to Art. 16 of the Charter of Fundamental Rights of the European Union as well as Art. 11 of the Charter, namely the freedom of information with copyright, which is protected under Article 17 of the Charter, had to also be based on the fact that the copyright did not constitute a complete right.

In addition, the Member States had to ensure that in case of conflicting fundamental rights a balance is struck and the principle of proportionality met.

To request that the Defendant block access violated this principle, particularly as it would be difficult to effectively avoid copyright violations by way of introducing such blocking measures. In addition, it would not be possible to differentiate between illegal and completely legal data, and as such the freedom of information would be endangered by too general a set of measures.

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