SABAM is a management company which represents authors, composers and publishers of musical works

Facts — SABAM is a management company which represents authors, composers and publishers of musical works. Netlog ran an online social networking platform. On their Netlog profile, users could keep a diary, indicate their hobbies and interests, show who their friends are, display personal photos or publish video clips. However, SABAM claimed that the social network offered all users the opportunity to make use, by means of their profile, of the musical and audio-visual works in SABAM’s repertoire, making those works available to the public in such a way that other users of that network could access them without SABAM’s consent and without Netlog paying it any fee. SABAM first unsuccessfully tried to negotiate a licensing agreement with the social network, then gave it a notice that it should give an undertaking to cease and desist from making available to the public musical and audio-visual works from SABAM’s repertoire without the necessary authorisation - also without results.

Given the lack of action taken by the social network, SABAM had it summoned before the Brussels Court of First Instance (rechtbank van eerste aanleg te Brussel) in injunction proceedings under Article 87(1) of the Law of 30 June 1994 on copyright and related rights. It requested that Netlog be ordered immediately to cease unlawfully making available musical or audio-visual works from SABAM’s repertoire and to pay a penalty of €1000 for each day of delay in complying with that order. The social network submitted that granting SABAM’s injunction would (1) effectively impose on Netlog a general obligation to monitor, which was prohibited by Article 15(1) of Directive 2000/31 and (2) introduce, at Netlog's own cost and for an unlimited period, a system for filtering most of the information which is stored on its servers in order to identify and block electronic files containing musical, cinematographic or audio-visual work in respect of which SABAM claims to hold rights.

" Holding — The CJEU first essentially restated its judgment in Scarlet Extended, finding it had to determine whether the injunction would require Netlog to carry out general monitoring of all the information that it stores. It then considered the requirements that stem from the protection of the applicable fundamental rights, namely SABAM's copyright, referring to the judgment in Promusicae to highlight that rights linked to intellectual property must be balanced against the protection of other fundamental rights. It then carried out this balancing exercise in the context of the case at hand, finding that because the injunction would result in a serious infringement of Netlog's freedom to conduct its business since it would require the company to install a complicated, costly, permanent computer system at its own expense, which would also be contrary to the conditions laid down in Article 3(1) of Directive 2004/48, which requires that measures to ensure the respect of intellectual-property rights should not be unnecessarily complicated or costly.

To come to this conclusion, it took into account that the contested filtering system would (1) involve monitoring all or most of the information stored by the hosting service provider concerned, (2) with no limitation in time, (3) be directed at all future infringements and (4) be intended to protect not only existing works, but also works that have not yet been created at the time when the system is introduced. " Holding — The CJEU first essentially restated its judgment in Scarlet Extended, finding it had to determine whether the injunction would require Netlog to carry out general monitoring of all the information that it stores. It then considered the requirements that stem from the protection of the applicable fundamental rights, namely SABAM's copyright, referring to the judgment in Promusicae to highlight that rights linked to intellectual property must be balanced against the protection of other fundamental rights.

It then carried out this balancing exercise in the context of the case at hand, finding that because the injunction would result in a serious infringement of Netlog's freedom to conduct its business since it would require the company to install a complicated, costly, permanent computer system at its own expense, which would also be contrary to the conditions laid down in Article 3(1) of Directive 2004/48, which requires that measures to ensure the respect of intellectual-property rights should not be unnecessarily complicated or costly. To come to this conclusion, it took into account that the contested filtering system would (1) involve monitoring all or most of the information stored by the hosting service provider concerned, (2) with no limitation in time, (3) be directed at all future infringements and (4) be intended to protect not only existing works, but also works that have not yet been created at the time when the system is introduced. " Comment — Share your comments here!