DOUBLE PLUS ILLEGAL?

On 25 June the District court of The Hague ruled against the Dutch government policy of allowing private copying of illegal content. “Making a private copy of illegal content is an illegal act” said the court.

This verdict outlaws the government policy as being in conflict with the so-called ‘three step test’ of article 5.5 of the EU Copyright Directive. Under this test an exemption from copyright may not prejudice normal exploitation of creative content or injure the legitimate interests of its right owner. The Dutch BREIN foundation for copyright protection has always argued that allowing copying or downloading content that is distributed illegally clearly interferes with normal exploitation and injures the right holders to such content who after all make a living from authorizing the distribution of their works.

BREIN feels its position is confirmed by the ruling. Interestingly the ruling is not one of BREIN’s cases against copyright infringement but concerns a claim from producers of blank recording media that the amount of the private copying levy should be decreased because it should not cover illegal copies. The court ruled that the ratio between the price of a blank cd or dvd and the amount of the levy is not relevant because the remuneration concerns the value of the copyrighted content. The court also ruled that the fact that many private copies are made from illegal (i.e. unauthorized) may be taken into account in determining the level of the remuneration.

In their August Newsflash BREIN says it will continue to enforce against illegal websites offering internet users access to unauthorized content. In addition BREIN also wants that infringing users are confronted with possible consequences of their behaviour. BREIN has been proposing that infringing users are warned by their ISP and that users which persist in infringing are punished by a temporary limitation of internet service. The system does not interfere with the privacy of the users and is proportional in its consequences. BREIN believes the system will foster compliance by educating and not condoning persistent illegal use.

Although BREIN originally proposed the system for file sharing users illegally uploading content - following the ruling it wants to expand it to users illegally downloading. As ISPs have been divided amongst themselves about these proposals, BREIN suggests that government involvement is required to get agreement and nationwide implementation of the system.