EU's Advocate-General Says Dutch Allowing Unauthorized Downloads Is Incompatible With European Copyright Law

from the that's-awkward dept

Back in 2012, Ben Zevenbergen wrote a long piece exploring a complicated Dutch case that had been referred to the Court of Justice of the European Union, the EU's highest court. It concerned the home-copying exception of European copyright legislation, and hinged on the question of whether the Dutch collecting society could charge for the "losses" that result from people downloading both authorized and unauthorized uploads. That distinction needs to be made, since in the Netherlands downloading copyright material is permitted, but uploading it is not. Manufacturers of blank media claimed that they should only have to pay a lower copyright levy that covered just the downloads of legally-uploaded materials.

As is usual in cases sent to the Court of Justice, the EU's Advocate-General (AG) gives an opinion first. Although not binding, that opinion is usually indicative, and rarely ignored. Here's what the Advocate General P. Cruz Villalón has said in this case, as reported by the Future of Copyright site:

The AG notes that the reasoning of the Dutch government has its origin in the fact that the Dutch law tolerates that unauthorized work or material is downloaded from illegal sources and only uploads can be curbed. "Thus the Kingdom of the Netherlands supports indirectly but inevitably, the mass distribution of products resulting from an illegal exploitation of protected works and materials", which, according to Villalon, cannot be regarded as normal. "The trivialization of downloading content that circulates online without proper authorization […] undermines the normal exploitation". This practice is not compatible with the basic idea of EU copyright law, in which it is established that copyright holders are entitled to fair compensation, said Villalón. Furthermore, the AG is of the opinion that current levy rates on empty media carriers are too low to generate a fair compensation.
On that basis, he advised the court to hold that copyright levies should not be allowed on unauthorized downloads. That's a win for the blank media manufacturers, but the Advocate-General's comments about the Dutch approach to filesharing being incompatible with EU copyright law will be problematic for the Netherlands if the Court of Justice agrees.

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Filed Under: copyright, downloads, eu, eu court of justice, netherlands


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  1. icon
    DannyB (profile), 10 Jan 2014 @ 6:14am

    Don't allow downloading Unauthorized content

    So exactly how is an ISP to determine whether content is unauthorized?

    Hollywood cannot even determine whether something is unauthorized. The right hand uploads promotional videos while the left hand takes them down. An artist uploads authorized promotional materials and hollywood takes them down. Someone uploads birds chirping and Hollywood takes it down, and doubles down saying yes it is copyright infringement.

    Something may also be clearly, unmistakably fair use and Hollywood is unable to make a reasonable determination of whether it is fair use.

    So how exactly is an ISP to know if something is fair use? (Extra credit: how is Google to know if something is fair use?)

    With the Internet now getting more secure and with more and more encryption, there will be another question to ask soon. How can an ISP even know what you are downloading? Or even if what you are doing is downloading vs some other activity that sends packets to your computer? (And why would it be any of their business?)

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