Proportionality of Website Blocking: Internet Connectivity Providers as Copyright Enforcers
Journal of Intellectual Property, 5(2) (2014) Information Technology and Electronic Commerce Law (JIPITEC) 116-138
23 Pages Posted: 4 May 2014 Last revised: 13 Oct 2014
Date Written: April 15, 2014
Internet connectivity providers have been ordered to block access to websites facilitating copyright infringement in various EU countries.In this paper, the proportionality of these enforcement measures is analysed. After addressing preliminary questions, the recent ECJ ruling UPC Telekabel Wien (C-314/12) and then case law from all Member States are examined from the perspective of proportionality. Finally, five criteria are submitted for proportionality analysis, and a proportionality evaluation is provided. The major observation is that the underlying goal of copyright enforcement has implications on how the scale tilts. In particular, ineffective enforcement mechanisms can be more easily accepted if the goal of symbolic, educational or politically motivated enforcement is considered legitimate. On the other hand, if the goal is to decrease the impact of infringement, higher efficiency and economically quantifiable results may be required.
Keywords: proportionality, fundamental rights conflicts, copyright enforcement, website blocking, internet service provider
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