FAQ

In Germany, copyright holders and internet access providers have signed a Code of Conduct. In this Code, they have agreed on a voluntary procedure for blocking access to structurally copyright-infringing websites. The intention behind it is to avoid litigation between copyright holders and internet access providers concerning the operators of such websites. The Code instead sets out a two-stage procedure for reliably examining the website in advance and therefore allowing a DNS block to be implemented effectively and quickly.

The first stage is performed by an independent body established under the Code of Conduct, namely the German Clearing Body for Copyright on the Internet (Clearingstelle Urheberrecht im Internet, CUII). That body examines the blocking requests of copyright holders according to objective criteria. The second stage is a follow-up check carried out by an official body, namely the German BNetzA for Electricity, Gas, Telecommunications, Post and Railways.

On the part of the internet access providers, the signatories to the Code are the companies that provide the vast majority of internet connections to internet users in Germany. On the side of the copyright holders, the signatories are either companies who suffer copyright infringements themselves as a result of the structurally copyright-infringing websites or associations that represent such companies.

Complete list of CUII members.

The CUII (Clearingstelle Urheberrecht im Internet - Clearing Body for Copyright on the Internet) is an independent German body set up and funded jointly by internet access providers and copyright holders in Germany. The CUII consists of an office and the review board. The state-run German Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railways (Bundesnetzagentur, BNetzA) is also involved in the procedure, although it is not a member of the CUII.

Upon request, the CUII initiates a review procedure to determine whether a DNS-block may be set up in Germany for a structurally copyright-infringing website. This examination is carried out in a two-stage procedure:

• First, a CUII review committee reviews and makes a recommendation. The review committee, consisting of three persons, is chaired by renowned former German Federal Court of Justice (Bundesgerichtshof, BGH) judges who have been familiar with the relevant legal and technical details of such cases for years. They were both judges of the First Civil Panel at the German Federal Court of Justice, the panel responsible for copyright law. The reviewers are lawyers who are nominated by the copyright holders and internet access providers involved but are not subject to any instructions from them. The review committee examines the application and if the requirements are met it recommends the blocking of the structurally copyright-infringing website in question. The recommendations of the review committee must be unanimous and only issued in clear cases. All recommendations are published here: https://cuii.info/empfehlungen/.
• Secondly, the recommendation is followed up by an official review. Each recommendation is forwarded to the German BNetzA (Bundesnetzagentur). In Germany, it is the competent authority for compliance with the rules on network neutrality. At the BNetzA, the check is carried out by the relevant specialists in the relevant department for net neutrality. At this stage, fully qualified lawyers as well as technical experts  are involved. Only when the BNetzA has confirmed in writing that the DNS-block is lawful can the German internet access providers participating in the CUII install the DNS-block in question.

The intention is to block only clear cases of copyright-infringing websites. Examples include thepiratebay.org, kinox.to or goldesel.to. The service provided by such platforms is specifically aimed at the infringement of copyrighted works in Germany. If there is legal content on the platform, its quantity is insignificant in the overall ratio of lawful to unlawful content (see German Federal Court of Justice (Bundesgerichtshof, BGH), judgment of 26 November 2015 - I ZR 174/14, para. 55). The sites usually have high user numbers and thus generate high advertising revenues despite their illegality – at the expense of the legal services provided by the creative industries.

German internet access providers enable internet users to access the internet as a neutral service. They have neither knowledge of nor control over the content offered on structurally copyright-infringing website. As mere internet access providers, they also have no contractual relationship with operators of structurally copyright-infringing websites. They can neither remove content from these sites nor remove the sites themselves; however, they are able to block their customers' access to such websites via their Domain Name System (DNS).

In the past, the German Federal Court of Justice (Bundesgerichtshof – BGH) has recognised the possibility of such DNS blocks in principle but has made them subject to certain conditions. The highest German court has taken the view that since the business model of internet access providers is approved by the legal system and is neutral with regard to infringements of third parties' rights, legal action should be prioritised against those parties who - like the operators of problematic websites - either committed the infringements themselves or contributed to the infringements - like the hosting providers of the problematic websites - by providing services. The assertion of claims against the internet access provider in Germany can only be considered if the legal action against the prioritised parties lacks any prospect of success, despite reasonable measures being taken, and therefore a gap in legal protection would otherwise arise (German BGH, judgment of 26 November 2015 - I ZR 174/14, para. 83). The recommendations of the CUII review committee and the official follow-up by the German Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railways (Bundesnetzagentur – BNetzA) ensure that these standards established by case law are observed.

An independent, three-member review committee makes a recommendation based on a comprehensive presentation of the case by the applicant. The recommendation of the review committee follows the applicable laws as well as the rulings to date of the German Federal Court of Justice (Bundesgerichtshof – BGH) and the Court of Justice of the European Union (CJEU), as well as the decisions of the lower courts that build on that case law with additional detail and specificity. This follows from Section 1.d) of the CUII Code of Conduct, which sets out that a review committee will issue reasoned recommendations in accordance with the case law of the German Federal Court of Justice. For the interpretation of this case law of the highest court, court decisions of lower instances can therefore also play a role.

All recommendations of the CUII review committee are subject to regulatory follow-up by the German Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railways (Bundesnetzagentur – BNetzA). Only when both review levels have expressed their opinion can the internet access providers implement the DNS block.

Die Empfehlung des CUII-Prüfausschusses wird behördlich durch die Bundesnetzagentur nachkontrolliert. Erst wenn sich beide Prüfungsstufen geäußert haben, können die Internetzugangsanbieter die DNS-Sperre umsetzen.

Yes. Section 6(5) of the CUII Rules of Procedure stipulates that each and every block on a structurally copyright-infringing website must be reviewed for compliance with the net neutrality requirements under the EU Net Neutrality Regulation (Regulation (EU) 2015/2120).

Yes, you can find a list of the structurally copyright-infringing websites that have been blocked so far in the recommendations section.

Copyright infringements on the internet do not deprive anyone of anything (material), but the use of copyright-infringing streams harms various people: The authors, the other rights holders and sometimes yourself as a user.

• Economic damage for rights holders: Firstly, authors and other rights holders are deprived of fair remuneration. The loss of income also means that this money cannot be reinvested in the creation of new works.

• Unpleasant side effects for users: Websites with copyright-infringing content often also contain dubious advertising, for example for gambling and erotic portals. In addition, there is a risk that you may leave sensitive data with the website operators, such as your credit card details, which could then be misused.

• Supporting criminal structures: Providers of copyright-infringing streams often systematically violate the copyrights and neighbouring rights of a large number of people. By using these sites, the website operators also generate profit - whether by taking out subscriptions or through advertising revenue - and are thus rewarded for their infringing behaviour.

Copyright infringing content is not always clearly recognisable as such. However, there are indications where there is a very high probability that the content in question infringes the copyright or neighbouring rights of rights holders.

Such indications can be, for example:

• Conspicuously favourable price compared to other providers or even free offer

• Missing information about the website operator, missing imprint

• Website is aimed at German-speaking Internet users, but domain is operated far away (for example ".to" for the South Sea island of Tonga)

• Mirrored picture

• Poor sound/film quality

These tips will help you find offers that do not infringe the rights of third parties:

• The provider can be found in the Agorateka library, a European online portal that supports the search for legal online offers in the areas of music, e-books, film, TV and video games.

• If in doubt, ask the rights holder.

No, the Selbstregulierung Informationswirtschaft e.V. is not a member of the CUII but was entrusted with the administrative implementation of the project.

No. The CUII is not an association and specifically not a registered association. The CUII and its organisational structure (Gesellschaft buergerlichen Rechts – partnership under German civil law) are the result of a multilateral agreement (the Code of Conduct).

The Selbstregulierung Informationswirtschaft e.V. is fundamentally separate from the CUII. It was founded in 2011 as an independent, private supervisory body for sector-specific codes of conduct and was only entrusted by the CUII with the administrative implementation. The Selbstregulierung Informationswirtschaft e.V. provides the website on behalf of the CUII.

Similar procedures to block access to structurally infringing websites via internet access providers have already been successfully established in many European countries. Article 8(3) InfoSoc Directive (2001/29/EC) obliges EU Member States to ensure that rightholders can apply for an injunction against an internet access provider whose services are used by a third party to infringe copyright and related rights. The Court of Justice of the European Union (CJEU) had already ruled in 2014 that blocking websites through internet access providers is a permissible means of preventing copyright infringements.

Blocks under the Code of Conduct are implemented exclusively in the form of DNS blocks. The name refers to the "Domain Name System" (DNS), in which – similar to a telephone directory - each domain name is assigned a numerical IP address. When a user enters a domain name into the address bar of a browser, this is translated into the corresponding numerical IP address by the internet access provider’s DNS server so that the user can be directed to the correct location.

The CUII deals exclusively with the blocking of structurally copyright-infringing websites. It does not deal with breaches of the law protecting minors from harmful media. This is primarily the responsibility of the state media authorities, whose authority derives from the German Interstate Treaty on the Protection of Minors in the Media (Jugendmedienschutz-Staatsvertrag - JMStV) in conjunction with the German Interstate Broadcasting Treaty (Rundfunkstaatsvertrag - RStV). The law on the protection of minors in the media distinguishes between banned content, the possession and dissemination of which is prohibited and punishable by law for everyone in Germany, and content that is generally permitted but may not be made available to children and young people on the grounds of its negative impact on their development. This task is incumbent primarily on the German Commission for the Protection of Minors in the Media (Kommission für Jugendmedienschutz - KJM) as an official body of the state media authorities.

The Code of Conduct concerns only websites whose purpose is to infringe copyright. It is also limited to clear cases. Any legitimate content on these websites is negligible. Internet users are only exposing themselves to risks when visiting structurally copyright-infringing websites. Moreover, the Code of Conduct respects the requirements laid down by the Court of Justice of the European Union (CJEU) in relation to such blocking to prevent internet access providers from interfering with the freedom of information of internet users (e.g. CJEU, Case C-314/12, para. 56). For this reason, the German Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railways (Bundesnetzagentur – BNetzA), as the competent state authority, is also involved in the process so that it can double-check any recommended blocking against the requirements of the EU Net Neutrality Regulation (Regulation (EU) 2015/2120).

According to net neutrality rules (under the EU Net Neutrality Regulation - Regulation (EU) 2015/2120) an internet access provider may take blocking measures to comply with national laws or measures that implement that regulation, provided this is in conformity with EU laws and any injunctions issued by courts or authorities that have the relevant powers. To ensure compliance with net neutrality rules, the competent authority, the German Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railways (Bundesnetzagentur – BNetzA), is sent any CUII recommendations for review before any DNS block is implemented by German internet access providers.

Yes. Any party affected by a DNS block set up according to the two-step procedure can apply to the courts to have this block reviewed. This means German internet access providers, operators of the structurally copyright-infringing websites or internet users in Germany who believe that the DNS-block does not meet the legal requirements. Copyright holders can appeal to the courts if a DNS-block was rejected by the CUII review procedure.

In its decision in UPC Telekabel (Case C-314/12, para. 56), the Court of Justice of the European Union (CJEU) stated that internet users should be able to assert their rights in court after the blocking measures taken by a provider have become known. According to the German Federal Court of Justice (Bundesgerichtshof – BGH), it is sufficient that internet users can assert their rights against the internet access provider in court on the basis of the contractual relationship existing between them (German BGH judgment of 26 November 2015 - I ZR 174/14). Internet users are entitled to recourse to the complaint mechanism prescribed by the courts if they are of the opinion that the DNS-blocks set up via the CUII procedure do not comply with the legal requirements despite the careful two-stage examination.

The CUII's two-step review procedure seeks to avoid unnecessary court proceedings in clear cases of mass copyright infringement. The two-stage examination procedure, with preliminary examination by the competently staffed CUII review committees and a state follow-up examination by the German Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railways (Bundesnetzagentur – BNetzA), can achieve this. The legal provisions for DNS blocking of structurally copyright-infringing websites do not mandate a prior decision by a judge. A court review nevertheless remains possible for all affected parties.

The requirement for a prior court decision does not follow from Article 8(3) InfoSoc Directive (2001/29/EC) or Article 11 Enforcement Directive (2004/48/EC). The wording of Article 8(3) InfoSoc Directive merely states that member states "shall ensure" that court injunctions are an available option, thus defining what the EU member states must provide as a minimum. However, Article 8(3) InfoSoc Directive does not state that such court ordered injunctions are a requirement for claims against internet access providers to exist. According to recital 59 of the InfoSoc Directive, the "conditions and modalities" are left to the national law of the member states. This is explicitly stated by the Court of Justice of the European Union (CJEU) in its well-known decision in UPC Telekabel (Case C-314/12 para. 43). German law also does not require a prior court decision.