Injunctions Against Mere Conduit of Information Protected by Copyright - A Scandinavian Perspective

Abstract

This paper includes an in-depth analysis of EU law and Scandinavian law on injunctions against internet access providers (IAPs) performing as mere conduit of information protected by copyright. In recent Scandinavian case law, courts have granted preliminary injunctions which have caused IAPs to either shut down specific internet connections allegedly used to infringe copyright or to block access to internet content, which allegedly infringed applicable copyright rules. This paper considers some significant legal challenges, which are emerging in the wake of this case law, and which should attract attention in all European member states. Firstly, it is shown that rules on preliminary injunctions are generally unable to safeguard the significant legitimate interests of third parties, which may be harmed by such relief, and that a proper implementation of Art. 8(3) of the Infosoc Directive requires rules, which take into due consideration the special aspects related to enforcement of copyright on the internet through IAPs. Secondly, it is shown that the termination of internet connections and the blocking of access to internet content may not support the public policies behind copyright law and also may restrict the freedom of expression under European human rights law. The analysis is based on a brief account for the relevant EU Directives, the implementation of these Directives in the Scandinavian countries and the Scandinavian case law regarding use of injunctions against IAPs to enforce copyright on the internet.

The paper has been accepted and published in International Review of Intellectual Property and Competition Law (IIC) - IIC 2011 Heft 2 pp. 151-180, which is available through www.beck-online.de.

Keywords: copyright, injunctions, intermediaries, IAPs, ISPs, mere conduit, freedom of expression