AG of EU Court of Justice rains on Dutch file sharing parade

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29 January, 2014


The Netherlands has been a paradise for file sharers for many years now. But this could very well change quite soon. Last week, Advocate General to the European Court of Justice mr. Cruz Villalon issued his opinion on the case of ACI versus Thuiskopie (case c-435/12). In the opinion Cruz-Villazon slammed the Dutch government for allowing downloading from an illegal source.I deliberately say ‘downloading from an illegal source’ rather than ‘illegal downloading’, because downloading files from an illegal source is currently not considered an infringement of copyright by the Dutch government.

This interpretation dates back to Parliamentary questions asked by MP Arda Gerkens of the Socialist Party in 2002. Her question to the Minister of Justice was whether downloading from an illegal source (e.g. an illegal upload to a file sharing site) was also covered by the home copying exception. The Minister answered that this was indeed the case. As such, copying a file (downloading), even if the source is an illegal upload, is not considered an infringement of copyright. Hence, Dutch downloaders can download music, movies and books at their leisure, without fear of prosecution.Whenever a homecopy is made however, the copyright holder must be compensated. In the Netherlands this is done via a levy on physical carriers (e.g. blank DVDs). The makers of these blank media weren’t very happy with this, went to court and ultimately ended up before to the Dutch Supreme Court. The question that was put before the ECJ by the Dutch Supreme Court was whether in the height of the compensation copies made from an illegal source should also be taken into account. To answer this question the ECJ must first answer whether the Dutch interpretation is actually in line with article 5(5) of the EU Copyright Directive (2001/29/EC).

Article 5(5) of the Directive sets out the requirements under which an exception to copyright is allowed in the national laws of the Member States. The formula used is based on the Berne Convention on Copyright and is called the ‘3 step test’. A copyright exception is only allowed under national law if:

  • the exception shall only be applied in certain special cases;
  • the exception does not interfere with the normal exploitation of the work; and
  • does not unreasonably prejudice the legitimate interests of the rightsholder.

According to Cruz Villalon, the Dutch interpretation fails the second step… hard. In his words:

“The Kingdom of the Netherlands indirectly but inevitably contributes to the massive distribution of copyrighted material, which in itself cannot be considered normal and is in fact the very cause of the problem that the member state tries to solve via the levy system… …Trivialising the issue of downloading from an illegal source cannot have any other consequence than that normal exploitation is disrupted.”

If the ECJ follows the conclusion of the Advocate General, the file sharing party in the Netherlands is over. Downloading will become illegal same as in the rest of the world and the rightsholders can go after downloaders with full force.


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Bart Schermer


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