Dynamic Blocking Injunctions – The Latest Approaches in Europe
Dynamic Blocking Injunctions – The latest approaches in Europe. A new challenge
The rise in illegal online activities and especially in the consumption of copyright protected content which has been boosted by the COVID-19 pandemic made it even more urgent to leverage existing legal remedies and adapt them further to strengthen the fight against audiovisual piracy in the digital era.
Such remedies include, among others, website blocking injunctions, Domain Name systems (DNS) blocking and Internet Protocol (IP) blocking.
Blocking injunctions find their legal basis in Article 18(1) of the e-commerce Directive. The compatibility of blocking injunctions with EU law has been confirmed by a number of Court of Justice of the European Union (CJEU) judgments, which also support the availability of dynamic blocking injunctions.
Blocking injunctions refer to an order requiring an internet intermediary to implement technical measures directed at disabling access to a specific internet location.
Dynamic blocking injunctions (DBI) is a second category of blocking orders and is meant to allow flexibility so as to cover repeated infringement and, therefore, enhance the effectiveness of the measures for the right holders. With one blocking order it is intended that identical or equivalent websites with different IP specific addresses or URLs can be blocked, rather than a narrower obligation of using certain, technical means to block a specific address or URL.
A subcategory of these DBIs is live blocking orders. They allow for the repeated blocking of a site every time a live broadcast is in process and allows new servers to be identified by the right holders and notified to access providers for blocking.
So far, the number of dynamic blocking injunctions have been limited. Certain countries like the UK have made them available with the principal goal of limiting infringement of rights to live (sport) events. These live blocking injunctions are at date far from being available in all the Member States. National case law is, however, increasingly concerned with blocking injunctions for combating illegal broadcasting of live sport events, including online transmissions.
The EUIPO study on dynamic blocking injunctions published in March 2021 gives a very interesting and thorough insight into Member State’s implementation of such injunctions.
To put the EU practice of blocking injunctions into an international perspective, it is important to understand that such practice is authorised in countries such as Argentina, India, Indonesia, Malaysia, Mexico, South Korea, Singapore and Australia. In many of these countries, these measures are now coupled with dynamic blocking injunctions.
For the time being, let’s focus on two countries in Europe: Portugal having already put in place a process to issue such DNS blocking orders and France that is very close to implementing them, with the new bill on the regulation and protection of access to cultural works in the digital era in France. We had the opportunity to interview experts in the field in both countries
A focus on Portugal and France
Portugal
We have interviewed Mr Pedro Bravo Martins and Mrs Natacha Padrão Ribeiro from Content Protection team at NOS Portugal.
How does the Portuguese anti-piracy system work as of today? What is the status of the blocking of illegal websites in Portugal?
In 2015, a group of Portuguese organisations representing different rights holders, media, consumer protection and advertising industry, joined forces with IGAC – General Inspection of Cultural Activities -, and APRITEL – Association of Electronic Communications Operators – to create a simplified procedure to fight digital piracy – the Memorandum of Understanding (MoU). The MoU provides a set of procedures that allow IGAC to issue DNS blocking orders. In 2018, a technical and administrative procedure was subscribed to the MoU, which allows private entities to block live signal by DNS. The MoU has been the most relevant instrument in the fight against piracy in real time. However, Portugal needs to go further.
That is why the Bill no. 706/XIV delimiting the circumstances under which access to protected content in the digital environment must be removed or made impossible was under discussion in the Parliament. This Bill will regulate a process that, since 2015, was merely administrative and sectorial and will allow an evolution in the protection of rights, as well as real time website blocking via DNS, IP and URL.
What is about to change with regard to blocking measures, including in relation to sport programmes?
With this law, content owners can report copyright infringement to IGAC, requesting a blocking order by DNS/URL, or IP, when the infringement occurs in real time and is limited in time without having to resort to precautionary or merely administrative and sectorial procedures.
Whenever the IGAC, the sectorial supervisory entity competent to determine the removal or impediment of access to illicit content following a complaint by the injured party or their representative, detects a site or service that makes content protected by copyright and related rights available without the authorization of the rights holders, it shall notify the offender and the ISPs to cease that activity and remove the Internet service or content or disable that access within 48 hours.
The intermediary service providers ISPs should prevent access to one or more URLs or associated DNS or access to content made available by one or more IPs.
The ISPs must adopt the measures as soon as possible after notification of the IGAC’s determination and the measures shall be in force never for a period of more than 48 hours or in some other cases, for a maximum period of one year. The measures can be extended for an equal period.
This law will allow real time blocking to protect short-term economic rights such as sports programmes.
Besides improved blocking measures, what will the new law bring to the fight against piracy?
The new law will regulate a process that, since 2015, was merely administrative and sectorial and will allow an evolution in the protection of rights, as well as real time website blocking via DNS, IP and URL.
It also regulates and legitimises the powers of IGAC to determine the removal or impediment of access to illicit content and states that the decisions of the IGAC may be appealed to a judicial court – Intellectual Property Court – that was not the case until now.
France
We have interviewed the High Authority for the Dissemination of Works and the Protection of Rights on the Internet (HADOPI), represented by Mrs Pauline Blassel, Secretary General and Mrs Mathilde Persuy, Head of International Affairs.
How does the French anti-piracy system work as of today? What is the status of the blocking of illegal websites in France?
In France, since the law promoting the dissemination of works and the protection of creation on the Internet was enacted in 2009, right holders have been able to ask for judicial blocking orders and delisting measures against copyright-infringing websites, for a period determined by the judge – usually between 12 and 18 months. In practice. Internet access providers implement DNS blocking measures.
The blocking measures are limited to the domains or access paths listed in the decision and do not address the problem of “mirror sites”.
What is about to change with regard to blocking measures, including in relation to sport programs?
The bill on the regulation and protection of access to cultural works in the digital era, the final version of which was passed on 29 September by the National Assembly, considerably strengthens the fight against websites that make a commercial profit from counterfeiting in violation of creators’ rights, and thus destroy a significant part of the economic value created by the cultural sectors. This new law creates a new regulator, the Audiovisual and Digital Communication Regulatory Authority (ARCOM), resulting from the merger of the High Authority for the Dissemination of Works and the Protection of Rights on the Internet (HADOPI) and the Higher Audiovisual Council (CSA), and puts it in charge of facilitating actions aimed at fighting infringing sites.
A new form of cooperation between the judge and the regulator is thus introduced into the French site-blocking system targeting copyright-infringing services, allowing the regulator to request the update of court rulings:
- Following a referral from right holders involved in the initial judicial decision, ARCOM is now entrusted with the power to request the update of blocking measures, and more generally of all measures ordered by the judge, from any person targeted by this decision, for a period that cannot exceed the remaining duration of the initial injunction. The text specifies that ARCOM, and not the technical intermediaries, is responsible for the identification of « mirror sites ». ARCOM communicates the data identifying the illegal services to the technical intermediaries, according to the procedures it has itself defined. Sites likely to be targeted by these new measures are those that reproduce, in full or in a substantial manner, the content of the service mentioned in the initial judicial order. In addition, the Authority develops standard agreements and invites right holders and any person likely to contribute to tackle online infringements of copyright and related rights to sign these agreements.
- A specific mechanism addressing piracy of live sports broadcasts is also created. This measure takes into account the urgency that is inherent in the piracy of audiovisual retransmissions of sports events in live streaming, as the damage in such a situation is instantaneous and irreversible. The text also provides for standard agreements to be drawn up by ARCOM and proposed to the parties involved, in order to organise both the communication of the identification data of the services to be blocked and the practical implementation of the updating measures. This mechanism is open to the holders of the audiovisual rights related to a sporting competition or event (as provided for in the Sports Code), i.e., the sports federations and the organisers of sporting events, in relation to the sporting events or competitions which they organise, and the assignees of these rights when applicable, i.e., the audiovisual communication companies and the professional sports leagues.
Besides improved blocking measures, what will the new law and the new regulator bring to the fight against piracy?
ARCOM is also tasked with drawing up a list of services that seriously and repeatedly infringe copyright and related rights. Infringing services can be added to this list, following an adversarial procedure supervised by a rapporteur.
The initiation of the investigation procedure is actually entrusted to the rapporteur, who can himself rely on sworn agents in order to achieve the assessment of the infringing services. These agents will have investigative powers enabling them to search for and document infringements.
By objectifying the characterisation of illicit services, this mission will secure self-regulatory actions implemented by various intermediaries, and in particular online advertising players (through the so-called “follow the money” approach aimed at drying up the resources of illicit services) as well as other intermediaries such as online payment processors, search engines, hosting companies, content delivery networks or other technical intermediaries that are likely to sign voluntary agreements under the aegis of the public authority.
Additionally, the authority is responsible for evaluating the effectiveness of existing agreements. In this respect, ARCOM may in particular make recommendations to promote the conclusion of such agreements and may formulate proposals to remedy any difficulties encountered in their implementation or at the stage of their conclusion.
The future will say if the new bill will achieve its goal and thus certainly not solve piracy but at least be an efficient tool to improve the market for legal content online. It anyway belongs to what could be considered as the new norm for website blocking worldwide.
In any event, these examples above do underline the need for new legislation in Europe, providing for immediate and efficient action, all the more for certain events that given their nature represent a specific value for the audiovisual sector. This is a message that AAPA among other alliances regularly conveys to the EU representatives to facilitate the adoption of a legislation providing for a proper fight against online piracy.
We shall see in our next papers what is the situation in Asia and Greece with respect to such blocking injunctions.
Christine Maury-Panis
EVP, General Counsel and Public Affairs
VIACCESS ORCA
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