In a recent interim decision (PMÖ 7648-19), the Patent and Market Court of Appeal ordered several internet service providers to take blocking measures against Sci-Hub and LibGen, the first of which proudly proclaims to be "the first pirate website in the world to provide mass and public access to tens of millions of research papers" free of charge.
The case is interesting in light of the court's 2019 decision in a similar case on interim blocking measures (PMÖ 9945-18, Dreamfilm). In that case, the court denied blocking injunctions due to a lack of proportionality and issued stern words about the evidence invoked by the claimant and the risk of overblocking legitimate content. This case provides well-needed, but insufficient guidance on the threshold for when a blocking injunction is warranted and how the sensitive issue of overblocking will be weighed in a proportionality assessment.
In 2018 two Dutch entities holding the copyright to numerous scientific articles commenced proceedings against a group of internet service providers on the basis that the provision of access to certain websites (including their copyright-protected works) constituted contributory copyright infringement. The difference between this case and similar previous cases was that the websites also contained an extensive amount of legal content, some of which was subject to licence and some of which was not covered by copyright.
The claimants requested the court to issue an interim blocking order, with which failure to comply would result in a fine. The Patent and Market Court found for the claimants. The decision was appealed to the Patent and Market Court of Appeal, which ordered a stay of execution in relation to the lower court's decision pending its interim decision.
In typical Swedish fashion, the court quickly concluded that the defendants' provision of access to the websites at issue constituted contributory copyright infringement. The court then addressed the proportionality of an eventual blocking order. Since the target websites included some non-infringing content and some of the domain names targeted by the injunction no longer led to the target websites, overblocking was a real concern.
In this context, the court referenced the European Court of Justice's decision in Telekabel (C-314/12) and its recent decision in Dreamfilm regarding the importance of considering freedom of information for end-users before issuing a blocking order. On this basis, the court considered the amount of legal content on the websites at dispute. Without going into detail on the proportion of legal versus infringing content, the court stated that it had been established that there was a considerable amount of copyright-protected content on the sites and that issuing an order for blocking measures would not limit the end-users' freedom to information in an undue manner. Hence, the appellate court revoked the stay of execution and ordered the service providers to administer blocking measures in relation to the websites within three weeks. The court took a strict view of which domains to target in the same manner as in Dreamfilm. Some of the domains which had previously linked to the infringing websites, but had already been closed down for the remainder of the domain registration period, were not subject to the blocking injunction.
The court did not exercise its option to grant the possibility to appeal the case to the Supreme Court, so blocking injunctions in Sweden will continue to be decided by the Patent and Market Court of Appeal.
Even though the court's rejection of a blocking order in Dreamfilm earlier this year was seemingly based on evidentiary issues within the scope of the proportionality assessment, the current case indicates a more rights holder-friendly move, as the interest of safeguarding the exclusive right to intellectual property was favoured over freedom to information and concerns of overblocking. Considering that the court has reached different conclusions in the assessment of proportionality in two similar cases in six months, it is worthwhile noting the differences between them.
While the court's examination was limited due to the claim's interim nature, its reasoning in the recent decision unfortunately leaves much to be desired. As is clear from the reasoning (and in view of Telekabel), the court will strive to counteract excessive blocking. Moreover, and as is clear from Dreamfilm, substantial ambiguities regarding the sharing of infringing content of the websites at dispute will fall back on the claimant.
While there was no substantial mention of the proportions of legal or illegal content on the websites in the case at hand, the court's reasoning at least clarifies that the claimant must establish a considerable amount of copyrighted content included on the website at issue for a blocking order to be considered proportionate. Whether this threshold means a certain fixed share or merely an absolute minimum amount of protected content is unclear from the decision and may have to be clarified in future case law.
The handling of the case on its merits now returns to the first-instance court. Both service providers and rights holders should await the court's upcoming judgments with interest to see if it is willing to elaborate on how best to strike a balance between safeguarding IP rights, providing access to information and addressing concerns over overblocking.
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