# C_2012303EN.01001202.xml

| 6.10.2012 | EN | Official Journal of the European Union | C 303/12 |
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6.10.2012

EN

Official Journal of the European Union

C 303/12

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Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 29 June 2012 — UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH, Munich (Germany), Wega Filmproduktionsgesellschaft mbH

(Case C-314/12)

2012/C 303/23

Language of the case: German

Referring court

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Parties to the main proceedings

Appellant in the appeal proceedings and defendant: UPC Telekabel Wien GmbH, Vienna

Appellant in the appeal proceedings and defendant:

Respondents in the appeal proceedings and plaintiffs: Constantin Film Verleih GmbH, Munich, Wega Filmproduktionsgesellschaft mbH

Respondents in the appeal proceedings and plaintiffs:

Questions referred

Questions referred

| 1. | Is Article 8(3) of Directive 2001/29/EC (1) (the Information Directive) to be interpreted as meaning that a person who makes protected subject-matter available on the internet without the rightholder’s consent (Article 3(2) of the Information Directive) is using the services of the access providers of persons seeking access to that protected subject-matter? |
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1.

Is Article 8(3) of Directive 2001/29/EC (1) (the Information Directive) to be interpreted as meaning that a person who makes protected subject-matter available on the internet without the rightholder’s consent (Article 3(2) of the Information Directive) is using the services of the access providers of persons seeking access to that protected subject-matter?

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| 2. | If the answer to the first question is in the negative: Are reproduction for private use (Article 5(2)(b) of the Information Directive) and transient and incidental reproduction (Article 5(1) of the Information Directive) permissible only if the original of the reproduction was lawfully reproduced, distributed or made available to the public? |
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2.

If the answer to the first question is in the negative: Are reproduction for private use (Article 5(2)(b) of the Information Directive) and transient and incidental reproduction (Article 5(1) of the Information Directive) permissible only if the original of the reproduction was lawfully reproduced, distributed or made available to the public?

| 3. | If the answer to the first question or the second question is in the affirmative and an injunction is therefore to be issued against the user’s access provider in accordance with Article 8(3) of the Information Directive: Is it compatible with Union law, in particular with the necessary balance between the parties’ fundamental rights, to quite simply prohibit an access provider from allowing its customers access to a certain website (without ordering specific measures) as long as the material available on that website is provided exclusively or predominantly without the rightholder’s consent, if the access provider can avoid incurring preventive penalties for breach of the prohibition by showing that it had nevertheless taken all reasonable measures? |
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3.

If the answer to the first question or the second question is in the affirmative and an injunction is therefore to be issued against the user’s access provider in accordance with Article 8(3) of the Information Directive: Is it compatible with Union law, in particular with the necessary balance between the parties’ fundamental rights, to quite simply prohibit an access provider from allowing its customers access to a certain website (without ordering specific measures) as long as the material available on that website is provided exclusively or predominantly without the rightholder’s consent, if the access provider can avoid incurring preventive penalties for breach of the prohibition by showing that it had nevertheless taken all reasonable measures?

| 4. | If the answer to the third question is in the negative: Is it compatible with Union law, in particular with the necessary balance between the parties’ fundamental rights, to require an access provider to take specific measures to make it more difficult for its customers to access a website containing material that is made available unlawfully if those measures require not inconsiderable costs and can easily be circumvented without any special technical knowledge? |
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4.

If the answer to the third question is in the negative: Is it compatible with Union law, in particular with the necessary balance between the parties’ fundamental rights, to require an access provider to take specific measures to make it more difficult for its customers to access a website containing material that is made available unlawfully if those measures require not inconsiderable costs and can easily be circumvented without any special technical knowledge?

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(1)  Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

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