Austrian Supreme Court asks preliminary questions about the scope of the private copying exception in Kino.to case

Yesterday, we wrote about the preliminary questions the Dutch Supreme Court asked to the European Court of Justice about the private copying regime. The case has some interesting similarities with the Kino.to case. Today, we will discuss some aspects of this case.

Kino.to was a streaming portal site, offering links to more than 130,000 illegal movies and television series. It attracted up to 4 million visitors per day. Because the operators of the website were unidentifiable and untraceable, the Austrian anti-piracy association ordered Internet access provider UPC in court to block its subscribers' access to Kino.to. According to the court, Kino.to caused significant damage to the legal market for audiovisual works in Austria and therefore granted the order. The Court of Appeal upheld this decision. UPC took the case to the Austrian Supreme Court. Meanwhile, the operators of Kino.to were finally found and arrested and the website was taken down.

On 15 June 2012, the Austrian Supreme Court asked four questions to the European Court of Justice. One of the questions regards limitations and exceptions in the European Copyright directive and resembles the questions of the Dutch Supreme Court. Summarized, the question is whether a private copying exception is only applicable to copies from legal sources or if it also extends to copies made from illegal sources. The Supreme Court questions whether a private copying exception that extends to illegal copies would violate the three-step test. This question is relevant in the Kino.to case because it addresses the issue whether individual subscribers use UPCs services to infringe on copyrights.  

Now we'll have to wait till the European Court of Justice comes with answers to the Austrian and Dutch preliminary questions. These answers will determine the scope of the limitations and exceptions in the European Copyright Directive and will therefore be of major importance.