Dutch Immediately Ban Unauthorized Downloads After EU Court Of Justice Confirms Incompatibility With Copyright Law

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:

nder 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.

Read the Full Article: Source – Tech Dirt

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