Website Blocking Actions and the Fight Against Intellectual Piracy: The first civil case in Bulgaria
Introduction
In the rapidly evolving digital age, intellectual property rights have become a complex, multi-faceted issue. The explosion of the internet and digital technologies has ignited new avenues for creativity and innovation. However, it has also sparked new challenges for protecting intellectual property rights. This article examines a recent legal development in Bulgaria, which elucidates the evolving landscape of digital rights enforcement in the context of EU legislation and court practice.
The fundamental focus in the fight against intellectual piracy must be to limit the accessibility of illegal content to users. In many cases, even if verdicts or sentences have been pronounced against the offenders, this has not prevented users from accessing the corresponding illegal content. Therefore, it is necessary to have relatively quick legal options available to right holders, so that they can request the cessation or limitation of users' access to illegal content. One of the legal possibilities to limit user access to illegal content on the Internet is to request Internet Service Providers/ISPs to block access to sites offering such content. These blocking measures are especially important when the illegal content is located on sites outside a given jurisdiction. The European copyright law allows for website blocking actions based on the provisions of Article 8, paragraph 3 of Directive 2001/29/EC and Article 11 of Directive 2004/48/EC.
The Bulgarian Court Decision of May 2023
In May 2023, a landmark court decision was pronounced in Bulgaria regarding the ability of right holders to exercise their rights against intermediaries, in cases of copyright infringement. This decision, which is not yet in force, allows access to certain websites that infringe intellectual property rights to be blocked, marking a significant step forward in the enforcement of these rights in the digital landscape.
"The case was brought in 2020 after almost a year of preparation and analysis of the relevant case law - of the European Court of Justice and of national courts in other Member States. This first and very important case for right holders in Bulgaria was an attempt to lay the foundations for the interpretation of the Bulgarian Copyright and Related Rights Act/CRRA in the light of the relevant European Directives and the binding case law of the European Court of Justice, and thus to answer questions about the admissibility and scope of such measures to block access to websites offering illegal content in Bulgaria," said attorney Desislava Mateva, who is leading the case on behalf of the plaintiff – the Bulgarian Association of Music Producers/BAMP, acting also as the National group of IFPI, the organization that represents the recording music industry worldwide.
The court decision derived its authority from the national provision of Art. 95b, para. 1, item 2, of the CRRA (permanent injunction) and is in line with the applicable EU legal norms, namely Article 8, paragraph 3 of Directive 2001/29/EC and Article 11 of Directive 2004/48/EC.
The Implications and Complexities
This decision signifies a pivotal shift in the enforcement of digital rights, extending protection not only to those who directly infringe intellectual property rights, but also to intermediaries whose services may facilitate such infringements. This becomes crucial when the illegal content is hosted on sites outside the jurisdiction of a specific country.
The court decision is aligned with the obligation arising from Article 4, paragraph 3 of the Treaty on European Union in conjunction with Article 288, paragraph 3 of the Treaty on the Functioning of the European Union. These mandate national jurisdictions to interpret internal law, as far as possible, in the light of the text and objectives of the relevant European directive, in order to attain the result envisaged by that directive.
A fundamental focus in this fight against intellectual piracy is the need for right holders to have rapid legal recourse. This will enable them to seek the cessation or restriction of users' access to illegal content, whether or not direct liability is sought against the providers or public distributors of the illegal content.
The website blocking actions have been recognized as both a proportionate and permissible measure, and as not contrary to the fundamental rights of consumers and internet connectivity providers, in a number of judgments of the CJEU, namely Judgment in Case C-610/15- BREIN/Ziggo; Judgment in Case C-314/12 - UPC Telekabel, Judgment in Case C-557/07 - LSG/Tele; Judgment in Case C-494/15 - Tommy Hilfiger, etc. The CJEU has categorically confirmed in the above judgments that these actions are in accordance with EU law, in line with the fundamental rights enshrined in the EU Charter of Fundamental Rights and, as a remedy, are reasonable and proportionate (C-314/12, C-610/15). Further, the website blocking actions are not inconsistent with the provisions of more recent Union legislation, namely Regulation (EU) 2015/2120 of 25 November 2015 laying down measures on access to the open internet and Regulation (EU) 2022/2065 (Digital Services Act), which will apply from 17 February 2024. Both Regulations provide that ISPs may be required to block access to infringing sites if ordered by a court or based on voluntary agreements.
The scope of the purposes pursued by such website blocking measures is also evidenced by a Communication from the European Commission to the European Parliament, the Council and the European Economic and Social Committee, published in November 2017, containing guidelines on certain aspects of Directive 2004/48/EC. It is clarified with the Communication that the obligation of Member States, provided for in the last sentence of Article 11 of the Directive, to ensure that competent courts can issue an injunction against an intermediary, is aimed not only at terminating the infringement but also at preventing further infringements.
Conclusion
This first civil case in Bulgaria is a notable development in the ongoing discourse on digital rights enforcement and the fight against intellectual piracy. It underlines the importance of the role played by intermediaries in potential intellectual property rights infringements, which puts them in the best position to prevent third parties, including very likely their subscribers, from infringing copyright and related rights by blocking their access to pirate sites.
While the battle against intellectual piracy is far from over, the current legal framework provides certain measures to combat this issue, aiming not only at terminating the infringement but also at preventing further infringements. This ensures a level of protection of intellectual property rights in the digital age.
Nevertheless, it should be noted that certain amendments to the current legal framework are necessary to take account of specific market characteristics in Bulgaria, including, but not limited to, the relatively large number of registered Internet connectivity providers compared to the overwhelming number of EU Member States, in whose markets many times fewer internet access providers operate. The latter is also linked to the rules on fair competition and equal treatment of economic operators, so that if a court blocks access to a website, the measure applies simultaneously to all undertakings providing these services on the territory of the country. Given this, we welcome the approach of the Ministry of Culture to develop a package of legislative amendments that would both: 1) create a uniform legal framework for court decisions to permanently block access to websites, and 2) improve the legal framework for blocking access to websites as an interim measure under Article 96a of the CRRA.
The evolving landscape of digital rights enforcement necessitates a careful balance between protecting the rights of creators and fostering an open, innovative digital environment. This first of its kind civil case in Bulgaria provides valuable insights into this complex issue and is likely to serve as a reference point for future legal and policy discussions regarding digital intellectual property rights.