[x-pubpol] Absurdity Of Copyright Policy Leaves Dutch Supreme Court Confused

[Joly MacFie]

http://www.techdirt.com/articles/20120924/03124520499/absuridty-copyright-policy-leaves-dutch-supreme-court-confused.shtml


by Ben Zevenbergen <http://www.techdirt.com/user/benzevenbergen>

The Dutch Supreme Court (Hoge
Raad<http://en.wikipedia.org/wiki/Supreme_Court_of_the_Netherlands>)
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<http://www.futureofcopyright.com/home/blog-post/2011/12/01/illegal-downloading-to-forbid-or-not-to-forbid-thats-the-question.html>
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<http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:167:0010:0019:EN:PDF>"
Directive in the year 2001, which was supposed to "*adapt
legislation<http://ec.europa.eu/internal_market/copyright/copyright-infso/index_en.htm>
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<http://www.techdirt.com/articles/20120919/14524220435/amazon-has-long-way-to-go-europe-streaming.shtml>
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<http://www.smarimccarthy.is/2011/08/copyright-combinatorics/>
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 us2,097,152 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<http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BW5879&u_ljn=BW5879>
(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<http://en.wikipedia.org/wiki/Berne_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<http://www.solv.nl/people/christiaan-alberdingk-thijm/17522> 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<http://arstechnica.com/tech-policy/2010/04/us-government-finally-admits-most-piracy-estimates-are-bogus/>.
Finally, the Court may not have been informed about this, but there’s been
a fierce quarrel<http://www.euractiv.com/infosociety/eu-asks-mediator-untangle-copyin-news-505104>
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<http://www.futureofcopyright.com/home/blog-post/2011/11/25/dutch-unions-legalize-illegal-filesharing-introduce-copyright-levy-on-internet.html>
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!


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