How dynamic is a dynamic injunction? An analysis of the characteristics and the permissible scope of dynamic injunctions under European Law after CJEU C-18/18 (Glawischnig-Piesczek)
In its judgment in C-18/18, the Court of Justice of the European Union concluded that injunctions including not only future identical infringements, but also similar infringements to the infringement in the initial proceeding do not constitute a general monitoring obligation and, as such, are not incompatible with the prohibition in Article 15 of the e-Commerce Directive. Such broad-scoped injunctions have been on the rise as they have proven to be an effective enforcement tool to tackle online infringements.
This article focuses in particular on the concept of dynamic, which are ordinary injunctions with two possible dynamic add-ons: a dynamic-content and a dynamic-infringer part. Unlike their general counterparts, the content of a dynamic injunction is subject to change. All this can increase the enforcement possibilities for online infringements, as general blocking injunctions are easy to circumvent by infringers through re-uploading the infringing content to IP addresses or domain names that fall outside the scope of the injunction.
Based on the primary and secondary Union law limitations, the article concludes that dynamic injunctions to prevent infringements of intellectual property rights can include an obligation for an online intermediary to block access to active infringements and to monitor its service for and block access to all future identical infringements to these initial infringements, irrespective of the uploading party. Similar content can be included when the injunction properly defines such content, and the injunction does not effectively oblige an online intermediary to carry out an assessment of the infringing nature of the content. To avoid such an obligation to carry out a legal assessment of the content, and based on the way dynamic injunctions have been successfully applied in several Member States of the European Union, it is recommendable to require similar infringements to be blocked only after a rightholder’s notification. All this would be necessary to prevent the over-filtering of legal content and unduly transfer the burden of identification from the rightholder to the receiving intermediary.
[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]