The new “Clearingstelle Urheberrecht im Internet ” (CUII) has started its work. Internet access providers have blocked the first illegal streaming portal on its recommendation.
The CUII is a non-governmental body for the enforcement of so-called DNS blocking. The CUII is backed by associations of rights holders (e.g., the Motion Picture Association, the German Publishers & Booksellers Association (Börsenverein des Deutschen Buchhandels), the German Music Industry Association (Bundesverband Musikindustrie), and the German Soccer League (Deutsche Fußball Liga), individual rights holders (e.g., Sky Deutschland), and Internet access providers (1&1, Telekom, Mobilcom, Telefónica, and Vodafone). The “recommendations” oft he CUII are based on their Code of Conduct and Rules of Procedure.
The CUII is intended to enforce DNS blocking against structurally copyright-infringing websites („Strukturell urheberrechtsverletzende Webseiten“ or „SUW“) more quickly and effectively. The target is websites that are at least also aimed at Internet users in Germany and via which content is made publicly available in a “clearly” copyright-infringing manner. DNS blocking affects the accessibility of websites. Normally, DNS servers (DNS stands for Domain Name System) translate the name of the website entered by the user (e.g. raue.com) into an IP address (e.g. 184.108.40.206) and thus direct the user to the corresponding page. DNS blocking prevents this. Since it is not not possible to take action against the website operators themselves, who are often based abroad, until now, the rights holders have had to enforce such blocking against the Internet access providers individually in court.
The Bundeskartellamt has not expressed any reservations about the establishment of the CUII in its function as the German independent competition authority. In the case of private enforcement bodies, it must ensure that there is no boycott of lawful competitor offers in violation of antitrust law. However, illegal offers of copyrighted content do not fall under the protection of antitrust law.
The procedure before the CUII is as follows: The three members of the review committee, chaired by a former judge of the German Federal Court of Justice, decide on the blocking application of a rights holder. Their unanimous “recommendation” is reviewed by the Bundesnetzagentur, the German Federal Network Agency, to determine whether blocking is compatible with the requirements of net neutrality (Regulation (EU) 2015/2120). This is the case if it is necessary to enforce national legislation . If the answer is positive, the Internet access providers block access to the website.
Various mechanisms safeguard the rights of the parties involved. The rights holder, the Internet access providers, and the owners of the websites concerned can appeal the recommendation to the CUII itself. In addition, the Internet access providers do not block access if there is a decision by an administrative body or a court decision to the contrary. The website operator concerned could, for example, obtain an injunction against the blocking. They could also turn to the Bundesnetzagentur or the Bundeskartellamt, both of which have made it clear that they will wait and see how the practice develops and intervene in individual cases.
III. Requirements in detail
Only “rights holders” can make an admissible application to the CUII. According to the Code of Conduct, these are only rights holders who are party to the Code of Conduct or who are members of an association that is party to the Code of Conduct (an overview of members can be accessed here). The CUII is therefore not open to everyone. If a rights holder wants to take action against a SUW by means of the CUII, the only thing left for him to do is to join one of the member associations and – this is an additional requirement for applications from individual association members – to obtain their consent to take action against the site.
The request is justified if the website is “structurally copyright infringing”. In its first published “recommendation”, the CUII applies the standards developed in the case law of the Federal Court of Justice and the European Court of Justice. Accordingly, it examines the application against the requirements of Section 7 (4) of the German Telemedia Act (TMG), which in turn finds its basis in Union law in Article 8 (3) of the InfoSoc Directive and Article 11 sentence 3 of the Enforcement Directive. Accordingly:
- The rights holder must be entitled, i.e. the work reproduced on the page must be protected by copyright and he must demonstrate his (derived) right to CUII.
- The website must be aimed at the German market and the communication to the public must be “clear” copyright infringements.
- The rights holder must have exhausted other remedies, i.e. must have primarily taken action against the operator of the website or its host provider.
- The blocking must be reasonable and proportionate. In particular, legal content must not be significantly outweighed by illegal content.
The CUII is a promising approach to private enforcement in German copyright law. It remains to be seen whether the CUII will live up to its claims and make quick and effective decisions for rights holders. In any case, in view of various safeguards and the possibility for affected site operators to appeal to the state courts at any time, there is hardly any threat of overblocking – which is feared in the network world. The fundamental question is how effective DNS blocking is. In any case, the page affected by the first blocking seems to be accessible at least via alternative domains.
The Raue Intellectual Property Team will be happy to answer any questions you may have about the CUII.
(25 March 2021)