Dutch Immediately Ban Unauthorized Downloads After EU Court Of Justice Confirms Incompatibility With Copyright Law
from the that-was-quick dept
The Court of Justice of the European Union is pretty busy these days. Earlier this week it released its important judgment striking down the EU's Data Retention Directive; now it has given its verdict on a complicated Dutch case involving the home-copying exception of European copyright legislation, and the associated use of copyright levies on blank media. As we reported back in January, the preliminary opinion of the EU's Advocate General was that the Dutch government should not allow unauthorized downloads of copyright material, as is currently the case, and that copyright levy calculations should not take such unauthorized downloads into account. Unlike the Data Retention verdict, where the EU's Court of Justice (ECJ) went well beyond what the Advocate General suggested, here the ECJ has largely followed his advice (pdf):
the Court holds that national legislation which makes no distinction between private copies made from lawful sources and those made from counterfeited or pirated sources cannot be tolerated.
In addition, it held that a copyright levy system that does not distinguish between authorized and unauthorized copies is not fair:
Under such a system, the harm caused, and therefore the amount of the fair compensation payable to the recipients, is calculated, according to the Court, on the basis of the criterion of the harm caused to authors both by private reproductions which are made from a lawful source and by reproductions made from an unlawful source. The sum thus calculated is then, ultimately, passed on in the price paid by users of protected subject-matter at the time when equipment, devices and media which make it possible to create private copies are made available to them. Thus, all users are indirectly penalised since they
necessarily contribute towards the compensation payable for the harm caused by private reproductions made from an unlawful source. Users consequently find themselves required to bear an additional, non-negligible cost in order to be able to make private copies.
This ruling has already had one immediate effect, as TorrentFreak reports:
The Dutch Government confirmed to [the Dutch Website] Tweakers that downloading copyrighted material for personal use is no longer allowed, effective immediately.
Unauthorized downloading for personal use was permitted in the Netherlands because the government there believed that EU copyright law allowed it. The ECJ's ruling establishes definitively that it doesn't, and so the downloading exemption no longer applies.
The longer-term effect on EU copyright levies is harder to predict. The Court's verdict means that countries may no longer take unauthorized copies into account when calculating how much to add to the cost of storage. It will be interesting to see whether they reduce the copyright levy as a result, as they should if they implemented the new ruling faithfully. However, given the general lack of logic or fairness behind copyright levies, that seems unlikely. The best response would be to drop the anachronistic copyright levies altogether, and for the copyright industries to launch more online services offering lots of material at fair prices to encourage users to switch from unauthorized to authorized downloads, as has happened elsewhere.