Absurdity Of Copyright Policy Leaves Dutch Supreme Court Confused

from the sidestep-and-postpone dept

The Dutch Supreme Court (Hoge Raad) has posed some pre-judicial questions to the Court of Justice of the EU regarding the home-copying exception in European copyright legislation -- raising significant questions about what is legal under EU rules and how it meshes with how people actually consume music. Of course, all it really seems to demonstrate is just how messy the copyright system is today. When the top judges of a country cannot figure out the seemingly simple question of whether downloading music and films is legal or not -- mainly due to a huge patchwork of amendments to copyright law over the years -- something needs to change. Drastically. Let's see if we can make some sense of it:

In essence, the home-copying exception allows people to make copies for non-commercial home uses. Such an exception makes a lot of sense, because these private copies are largely impossible to enforce anyway. A levy is imposed on manufacturers of blank media to compensate rights holders for the supposed "losses" from foregone license fees.

The case in question concerns a group of these blank media manufacturers, who refuse to pay the full levies imposed by the collecting society in charge of the compensation for the home-copying exception. The collecting society considers it fair to charge for "losses" that stem from people downloading unauthorized uploads. You see, in the Dutch system, there is a chicken and the egg problem where you may download copyright protected content, but you may not upload (not unlike its policy for marijuana where buying and selling is tolerated, but growing is not). Any uploaded material is therefore often considered to stem from an illegal source. There is a huge political debate about the desirability of this construction in the Parliament.

The Netherlands is one of the few countries that has a system like this, where the end-user is partly taken out of the equation for copyright infringement. This is due to a particularity in European copyright, which is a headache to comprehend, but necessary to understand the confusion of the Court. Here’s a quick summary:

The EU legislator adopted the so called "Copyright in the Information Society" Directive in the year 2001, which was supposed to "adapt legislation on copyright and related rights to reflect technological developments" and make sure all 27 copyright systems in the EU would become more or less uniform. The hope was that this would knock out some of the problems of very different systems, and create a better "single market" for European content.

Of course, no copyright law is complete without the important exceptions and limitations, like the fair-use doctrine in the US. However, in the case of the copyright directive, the exceptions and limitations were optional for Member States, thereby effectively eliminating any chance for a uniform (or "harmonized") copyright legislation in the EU and thus missing the point completely. Information activist Smari McCarthy explains the resulting chaos well:
The directive outlines 21 different optional exceptions or limitations to the right of reproduction of copyrighted works. Each country implementing the directive can choose to either include or leave out the exception clause. This gives us 2,097,152 different ways to implement the directive.
Now repeat this for the 27 Member States, and you see where this fragmentation exercise is going. Since only a few countries have also implemented this home-copying exception and there has not yet been a legal conflict about it, no jurisprudence exists on which the Dutch court can rely. The exception reads as follows:
Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases: [...]

[...] in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject matter concerned;
As you see, this text does not include any information on whether the fair compensation should be based on only foregone license fees (implying only copies from legal sources), or whether all copying on blank media carriers should be included.

When the collecting society proposed to start charging for copies from illegal sources in 2008, the manufacturers of blank media went to court hoping for a ruling that levies should only be payable for copies which are allowed under the copyright directive, thus only from legal sources (as this would decrease the levy significantly).

If you read through the lines of the courts’ analysis (and if you understand Dutch), I think you can see quite clearly that the judges tried their utmost to find a way to reconcile this copyright exception with the way people share and use works online. The Court states it would like to give rights holders a fair compensation via a levy system for losses from piracy, but it is unsure if EU law allows this. In its questions, the Court proposes some ways of establishing the mechanism for fair compensation and asks the European court whether this would be permissible under law. The questions asked by the Court are rather technical in nature, but here’s a quick summary of the main points (my interpretation, not a literal translation!):

1. Can the home-copying exception be interpreted so that the exception applies to all copies, regardless of whether the original was an authorized source? Or does the exception only apply to copies, which are derived from an original, which does not infringe copyright itself?
2a. Can the three-step test be used to expand the scope of the exception to include all copies?
2b. Is the Dutch construct – where downloading from any source is legal – in conflict with EU law? Would it help to mention that feasible technical tools to counter the making of private copies is not yet available, which may influence your decision regarding the three-step test? [...]
Dutch internet lawyer Christiaan Alberdingk Thijm is confused about the Courts’ deliberations:
I find it remarkable that Court contemplates a compensation paid for downloading copyright protected works from an illegal source, but that this does entail that the act of copying of this content is permissible under law. In my opinion, there are simply just two options: either it is permissible to make private copies from an illegal source and we pay the levy, or it is illegal and we don’t pay the levy. I do not agree with the current system either, though, where downloading from illegal sources is permissible but no levies are charged over this.
The court misses some important points here, indeed. First, if people are paying levies for unauthorized downloads, society will perceive their actions to be justified. Second, people mainly use phones, computers and portable devices for music and films. Hardly anyone uses blank media any more. Therefore, levies on CD’s, for example, miss the objective. Third, if a levy is imposed, we get into the sticky situation where actual losses from downloading unauthorized content needs to be determined, which is a seemingly impossible task. Finally, the Court may not have been informed about this, but there’s been a fierce quarrel on the amount charged for levies at the EU level, which has raged on for the past 15 to 20 years. Recently a mediator had to be hired to find a way out of this mess.

Apart from total confusion about the copyright system and how it should be applied to the internet, the Court may have also chosen to sidestep the current and hostile politicized debate in the Netherlands, which was met with opposition from many sectors of society. The Court has not given a conclusive ruling in this debate, so now the European Court may rule on whether the Dutch construction is legal. Expect an update in a few years time!



Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    abc gum, Sep 25th, 2012 @ 10:56am

    "A levy is imposed on manufacturers of blank media to compensate rights holders for the supposed "losses" from foregone license fees. "

    aka: you must be a criminal tax

     

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    •  
      icon
      karim (profile), Sep 25th, 2012 @ 11:19am

      Re:

      It's not just the Dutch, as a resident of Germany I too have to pay the ridiculous "everyone is a pirate" tax. Why? GEMA. They are quite the lovely bunch of entitled do-nothingers.

       

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    •  
      identicon
      Another AC, Sep 25th, 2012 @ 11:24am

      Re:

      Indeed, I can't seem to understand why the post keeps calling it 'Fair Compensation'. Any compensation awarded to a party who was not wronged is inherently unfair.

      It's based on some absurd notion that copying does happen, so someone somewhere must deserve compensation. But it seems to ignore the fact that it's impossible to know who, where, what, or when any of it actually happens.

       

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      •  
        icon
        benzevenbergen (profile), Sep 25th, 2012 @ 12:52pm

        Re: Re:

        Hi, I kept calling it "fair compensation" because that's what it says in the law (I put it in bold in the article). I agree with your point though. I think it was put in there to sounds right, but in practice no one really knew how to implement a fair system.

         

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          icon
          weneedhelp (profile), Sep 25th, 2012 @ 2:33pm

          Another FTFY moment.

          "I think it was put in there to sounds right, but in practice no one really knew how to implement a fair system."

          in practice politicians really dont know how to implement a fair system.

           

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  •  
    identicon
    Anonymous Coward, Sep 25th, 2012 @ 11:02am

    Maybe they should go double dutch

     

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  •  
    identicon
    Anonymous Coward, Sep 25th, 2012 @ 11:44am

    The term "fair" compensation is too vague. What's "fair" is not a uniform standard from person to person. It's entirely subjective.

     

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  •  
    icon
    Lowestofthekeys (profile), Sep 25th, 2012 @ 11:53am

    Yo Ben, I'm really happy for you and I'mma let you finish, but I think you meant to put "Absurdity" instead in the title.

    Signed,
    Kanye West.

     

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  •  
    identicon
    Anonymous Coward, Sep 25th, 2012 @ 12:05pm

    > You see, in the Dutch system, there is a chicken and the egg problem where you may download copyright protected content, but you may not upload. Any uploaded material is therefore often considered to stem from an illegal source.

    Not if the uploaded material came from a different country where it could be uploaded legally.

     

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    •  
      icon
      Seegras (profile), Sep 26th, 2012 @ 4:36am

      Re:

      That's not a problem.

      Since the downloader can't tell whether something is illegal (only a judge can tell!), he must assume it's legal.

      Besides, if somebody posts a picture of a cat somewhere, and you download it, how would you know whether this is itself was uploaded legally? And actually, it's like that with MOST material.

      The "probably illegally uploaded" things are a minority if you factor in all the pictures, videos, posts and emails of everyone on this planet.

      And you can't place the burden of proof onto the downloader; so you just don't.

       

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  •  
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    DannyB (profile), Sep 25th, 2012 @ 12:07pm

    Maybe there should be a levy on all published for-profit works. This levy could be collected directly from copyright owners. It would be used to compensate those whose rights or business was damaged by false DMCA takedowns (or equivalent), or business disruption, improperly seized domain names, etc.

     

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  •  
    icon
    jupiterkansas (profile), Sep 25th, 2012 @ 12:18pm

    Don't expect things to get better. The more complicated the system, the more the lawyers love it.

     

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  •  
    identicon
    trish, Sep 25th, 2012 @ 12:27pm

    fuck it

    what a hassle. who needs music and movies anyway.

     

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  •  
    identicon
    Again, Sep 25th, 2012 @ 12:32pm

    Again, you have a spelfout in your title.

     

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  •  
    identicon
    Anonymous Coward, Sep 25th, 2012 @ 1:24pm

    "[...] in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject matter concerned;"

    Wait... but what if the copied program is of a piece of software utility intended for commercial use?

    *facepalm*

     

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  •  
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    weneedhelp (profile), Sep 25th, 2012 @ 2:31pm

    FTFY

    Absuridty Of Copyright Policy Leaves Dutch Supreme Court Confused

    Absurdity Of Copyright Policy Leaves everyone Confused.

     

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    •  
      identicon
      Digitari, Sep 25th, 2012 @ 5:12pm

      Re: FTFY

      not really it's pretty easy actually

      Step one take a 5$ hit of Acid

      step too what was the quest..... wow did you see that purple thing flying by??..........

       

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  •  
    identicon
    Anonymous Coward, Sep 25th, 2012 @ 6:18pm

    It's just more proof of why the EU doesn't work under the current layout - because each country has retained a little too much control over it's local laws.

    If the EU passes laws that are toothless, or can be overridden or ignored at the local level, it's meaningless.

    The court should only be confused about why the EU exists.

     

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  •  
    identicon
    Anonymous Coward, Sep 25th, 2012 @ 7:21pm

    The Dutch supreme court isn't just confused, it's dazed and confused.

     

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  •  
    identicon
    Anonymous Coward, Sep 26th, 2012 @ 3:14am

    given the ridiculously absurd rulings that have been handed down at The Hague by a copyright maximalist judge, i am not surprised that the excuse of confusion over copyright is being used by the Dutch Supreme Court. shame they haven't got the balls to make their own sensible rulings relying on others to eventually take the flak. the result will now come down to who the entertainment industries, probably via the EU Commission 'encourages' the most. even when those with sense can see what should happen, they dont have the guts to say it, preferring to just sit back, take the very large payments and let the money do the talking

     

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  •  
    identicon
    Smári McCarthy, Sep 26th, 2012 @ 4:10am

    Revised numbers

    I have since posting that blog post revised the figures. I've written a full paper on the subject, with a bunch of conclusions, but in particular, the number of methods of implementing the directive is 12,157,665,459,056,928,801. That's 9^20. Hurray for harmonization!

     

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      benzevenbergen (profile), Sep 26th, 2012 @ 2:34pm

      Re: Revised numbers

      Hi Smari, my apologies, I wasn't aware. I had saved your post I quoted up there because I knew this calculation would come in handy one day. Awesome stuff though, I'll read the full paper asap!

       

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  •  
    icon
    Seegras (profile), Sep 26th, 2012 @ 4:47am

    The court misses some important points here, indeed. First, if people are paying levies for unauthorized downloads, society will perceive their actions to be justified.
    That's NOT a problem. This is absolutely intended, because copyright applies to PUBLISHING, not to possession or acquisition. And most European countries do have exactly the same philosophy behind their copyright laws.

    Second, people mainly use phones, computers and portable devices for music and films. Hardly anyone uses blank media any more. Therefore, levies on CD’s, for example, miss the objective.
    Yes, if the levies are only on CD's it's of course absurd. The NRW Pirate Party (Germany) proposed a general levy on data storage devices not exceeding 5% of the retail price. Which sounds about sensible.

    Third, if a levy is imposed, we get into the sticky situation where actual losses from downloading unauthorized content needs to be determined, which is a seemingly impossible task.

    THAT is of course a problem. I can see here the big content producers profiting, but not the photographer of a cat, whose picture is widely circulated everywhere.

    But these levies are already here, in the Netherlands, Germany(!), Sweden, Norway, Switzerland .. I don't know where else, but probably all over Europe.

     

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    •  
      identicon
      Tor, Sep 26th, 2012 @ 5:09am

      Re:

      At least in Sweden the levies are not supposed to compensate for illegal copying, just for the copyright exceptions that make it possible to make a copy of say a CD to give to a close friend or use yourself in the car (to avoid risk damaging the original).

      Now this is of course ridiculous since one could instead have the sellers factor this into their price - they'd just have to raise the price by some percentage if they felt that to be the right course of action. Why involve third parties?

      Btw. has the NRW Pirate Party presented any plan for how the levies would be distributed? So far I have never seen any convincing solution. To me there are many similarities between this debate and how foreign aid is often discussed. Instead of focusing on the output (the distribution) people obsess about the input (the amount), as if the primary reason was not to stimulate valuable work but rather to feel good about oneself.

       

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