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19 March 2009
Until last year, downloading music and films from illegal online sources for private use was not prosecuted under Dutch law. By tolerating illegal downloads, the Netherlands was the odd one out in Europe. It seemed that the District Court of The Hague's June 2008 ruling in ACI Adam BV cs v Stichting De Thuiskopie cs(1) would bring about change. In contrast to the official view of the minister of justice, the court clearly stated that it qualified downloading from illegal online sources for private use as illegal. The question is now whether this ruling has in fact brought the Netherlands back into line with the rest of Europe.
The Dutch Copyright Act allows consumers to make copies of copyrighted material such as music and films for private use. The act refers in principle to copies made from legal sources. Thus, a consumer may buy music on, for instance, iTunes and burn it onto a CD. Since 2002 it seemed clear that downloads from illegal sources for private use were tolerated. In response to a question posed by Parliament in 2007, the minister of justice replied that the act did not imply that private copies should be made from legal sources only. According to the minister, only the uploading of unauthorized material is clearly illegal.
No safe harbour
The minister's views did not create a safe harbour for consumers. Under civil law, consumers could still be held liable for damages by the copyright owner if, for example, the consumer was clearly aware that he or she had downloaded an illegal copy of a film that had not yet been released in the Netherlands.
Private copy duty
The act allows consumers to make copies of copyrighted materials for private use, provided that reasonable compensation is paid for the copy. This reasonable compensation is incorporated into the price of blank CDs and DVDs. The minister of justice had decided that this duty could also provide compensation for those artists missing profits due to the illegal downloading of their work. Stichting De Thuiskopie is the foundation that centrally regulates the private copy duty levied on blank CDs and DVDs and that distributes the revenues among artists.
A group of manufacturers of blank CDs and DVDs did not agree with the amount of the private copy duty (on some blank media the duty can be as high as €0.50 an article), and decided to take legal action. The manufacturers asked the court to determine the circumstances that must be taken into account when setting the amount of the private copy duty. The manufacturers asked the court, among other things, to declare that when determining this amount, Stichting De Thuiskopie may not take into consideration the fact that the future contents of the blank CD or DVD may be obtained from an illegal source.
The court first held that downloads from illegal sources are always illegal. However, it then decided that Stichting de Thuiskopie may take the consequences of illegal copying into consideration when determining the amount of the private copy duty. This makes the decision remarkable. It is inconsistent that downloading from illegal sources is not allowed on the one hand, but that the private copy duty (imposed for the purposes of providing compensation for legal copying) can be based on the same illegal action on the other. In the view of many authors, there are only two options. Either, downloading should be entirely legalized, irrespective of the nature of the source, and should always be subject to compensation for the artists by virtue of the private copy duty; or downloading should be held illegal with no compensation for the artists. The decision has led to the strange situation where consumers, by buying blank CDs or DVDs, compensate artists for damages resulting from illegal dowloading, but may not burn the work onto a CD or DVD.
The ruling caused consternation. While the minister had never dared to take a stance on the issue, the court clearly stated that downloading from illegal sources for private use is not allowed. Since then, debate has grown among legal practitioners. Will the decision spell the end of illegal downloads and the start of a campaign against users of peer-to-peer software such as LimeWire and Soulseek? Will consumers be able to continue their illegal downloading activities safely?
France has set a good example on this issue: in France, anyone who downloads from an illegal source risks being cut off from the Internet and getting fined. Until now, the Dutch government has expressed no formal plans to impose similar rules. Nevertheless, since the court ruling, downloading from illegal sources is not entirely without risk. In the court's view, downloads from an illegal source are always unlawful (whether or not the party dowloading is prosecuted). However, it must be taken into account that the court ruling concerned a case between specific stakeholders (ie, manufacturers of CDs and DVDs and Stichting De Thuiskopie), in which the rights of consumers were not taken into consideration. Due to the fundamental nature of this case it is almost inevitable that an appeal will follow.
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