Last week the Dutch Supreme Court decided to refer some interesting questions to the European Court of Justice. The responses it receives back could have some serious implications for the tolerant environment currently enjoyed by file-sharers in the Netherlands.
The case involves argument over the country’s private copy levy, which sees Dutch citizens granted the right to carry out personal use copying in return for rightsholders picking up revenue from levies on blank media.
These levies are set through negotiation between a foundation representing authors and composers on one side, and producers of blank media on the other. In the most recent round the argument was raised that the current levy should also extend to cover downloads made from illegal sources, i.e from online file-sharing networks.
As confusing as it might sound, downloading from illegal sources is considered legal in the Netherlands. That notion was underlined in December 2011 when the Dutch parliament adopted a motion to keep downloading movies and music for personal use legal, and considering a situation where current copyright levies could be extended to downloading-related hardware such as hard drives.
“The Court of Appeals held that downloading from an illegal source is itself legal, mainly because the Secretary of Justice had repeatedly said so in Parliament and the language of the private copying article (from the Copyright Act) did not require a legal source explicitly,” Arnoud Engelfriet, a lawyer specializing in Internet law at the ICTRecht law firm, told TorrentFreak this morning.
However, the Supreme Court now makes the observation that the EU Copyright Directive may consider that copying from an illegal source is self-evidently illegal, so it has referred the matter to the European Court of Justice.
The Supreme Court has asked the ECJ several questions including whether private copying can only be legal if carried out from a legal source.
“[If we] suppose that’s the correct reading, can the Dutch then go further than the Directive and also legalize home copying from an illegal source? Or is *only* the Directive the source of legal acts within copyright law?” Engelfriet explains.
A report commissioned by the Dutch government in 2009 found that file-sharing has an overall positive effect on the Dutch economy, which is just as well since an estimated 30% of the population are believed to engage in the activity.
The decision of the ECJ will determine the continued legality – or otherwise – of downloading for personal use in the Netherlands, with the potential to affect millions.