Questions préjudicielles dans l’affaire Sabam contre Scarlet

The Brussels court of appeals recently referred the case of Sabam versus Scarlet regarding the liability of internet service providers to the Court of Justice of the European Union for a preliminary ruling. Sabam, a collecting society, initiated a claim against the internet service provider Scarlet, to prevent that on Scarlet’s servers illegal music and video files would be exchanged via a peer-to-peer network. The first court ruled that Scarlet could be held as an intermediary and had to take active steps to prevent such unlawful file sharing, but Scarlet appealed.

The court of appeals now considers that the Belgian Copyright Act, which states that the national courts may issue an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right, must be interpreted in light of the European directives regarding copyright in the information society, regarding the enforcement of intellectual property rights and regarding data protection, as well as in light of the European Convention on the Protection of Human Rights and Fundamental Freedoms.

The European Court of Justice will have to decide whether such a provision of national law may lead to an obligation of an internet service provider “to introduce, for all its customers, in abstracto and as a preventive measure, exclusively at the cost of that ISP and for an unlimited period, a system for filtering all electronic communications, both incoming and outgoing, passing via its services, in particular those involving the use of peer-to-peer software, (…) and subsequently to block the transfer of [unlawful] files.”

Hopefully, the Court of Justice will strike an equitable balance between the interests of the holders of intellectual property rights and those of the service providers who should not have a general burden to police their own customers.