This regularly-updated report and collection of case law provides a digest of infringement cases from across the European Union and the UK. Initially released in March 2021, it is updated regularly. The cases provide examples and guidance toward evaluating new piracy cases as they emerge.
The reports reflect the latest developments and trends in jurisprudence in this field. Not only do these reports detail cases that were successful, they also describe situations where courts dismissed cases for various reasons.
The report defines three types of blocking injunctions:
- A Static blocking injunction refers to ‘an order requiring an internet intermediary to implement technical measures directed at preventing or disabling access to a specific internet location.’
- Dynamic or forward-looking blocking injunctions, in which materially the same website becomes available immediately after issuing the injunction with a different IP address or URL wihtout requiring a new injunction.
- Live blocking orders, which allow the repeated blocking of a site every time a live broadcast is in process. Live blocking allows for new servers to be identified by the rights holder and notified to access providers for blocking. It also ensures that old servers are not blocked after the end of a certain time.
Internet site-blocking injunctions can be implemented through DNS blocking, IP address blocking, or through uniform resource locator (URL) filtering.
The report analyzes the availability of blocking injunctions, their scope, technical implementation, and their effectiveness in reducing infringement and aims to help various stakeholders, Member States and other legal professionals to implement and/or improve the application of dynamic blocking injunctions.
The ‘recent case-law update’ of April 22, 2022, reports on significant European decisions related to infringing and enforcing IP rights up until that date. The document contains 214 summaries of key judgments from national courts and preliminary rulings from the Court of Justice of the European Union (CJEU). It segments them into new cases that were added or had follow-ups after the previous update was released, and decisions issued from 2018 through March 2022.
What is evaluated
Requirements for obtaining a blocking injunction differ across participating countries. However, there are still some common general requirements and procedural rules that apply in most countries, including the need to demonstrate the rights holder’s status and ownership of rights, evidence of alleged infringement, proportionality, appropriateness and/or reasonableness of the requested measure.
Factors evaluated include
- The rights and interests of parties involved
- Types of blocking measures that are available. For example, in some countries live blocking injunctions are available, with the goal of limiting infringement of live sporting events, while in other countries live blocking injunctions are either not available or have not yet been tested in court.
- The scope of dynamic blocking injunctions, the subject matter, targeted intermediaries, targeted websites, temporal and territorial scope, which vary from country to country
- Requirements for, and admissibility of, evidence for blocking injunctions
- The implementation of blocking injunctions. In some countries, technical solutions are ‘specified,’ while in others, they are ‘suggested.’
- Follow-up actions to dynamic blocking injunctions, where, in some countries, specific procedures are available for renewing, updating, or extending static and dynamic blocking injunctions; while in other countries, they are not
- Extra-territorial scope of injunctions, were it is up to national courts to “decide whether extraterritorial injunctions could be imposed according to their own balancing of fundamental rights and application of international norms.”
An additional important factor to evaluate availability, scope and proportionality of blocking injunction is their effectiveness in reducing infringement. The effectiveness of blocking injunctions is usually not explicitly assessed in most countries.
Blocking injunctions find their legal basis in Article 18(1) of the e-commerce Directive, Article 8(3) of the InfoSoc Directive and Article 11 of the IPRED. 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. However, while static blocking injunctions are available in all the SMS, dynamic blocking injunctions are not or, at least, their availability has not yet been tested in the courts in some of the SMS
Why it matters
Prepared by the European Union Intellectual Property Office (EUIPO) legal expert group, the report provides an overview of static and dynamic blocking injunctions in the EU and the Member States available for rights holders who wish to effectively combat online piracy and protect their rights.
Different requirements apply across the EU, regarding the evidence required to obtain blocking orders, and especially forward-looking injunctions (or dynamic injunctions), which can be used to prevent the continuation of IPR infringement.