The ACI Adam and UPC Telekabel judgments: time to legalise file-sharing?

From Joao Quintais and Christina Angelopoulos comes the following note, with a timely reminder concerning the forthcoming Information Influx event. They write:

In Case C-435/12 ACI Adam BV and Others the Court of Justice of the European Union (CJEU) ruled that the private use copying exemption allowed under Articles 5(2)(b) and 5(5) of Directive 2001/29 (the InfoSoc Directive) is limited to reproductions made from lawful sources. This affects how private copying levies can be calculated: the number of reproductions made from unlawful sources can no longer be taken into account. At least as importantly, it also means that a significant number of acts of reproduction made by end-users are now clearly qualified as infringing, such as downloads of movies and music from unlicensed internet sites. Does this strengthen or weaken the case for the legalisation of file-sharing for non-commercial uses?

At the Institute for Information Law's upcoming Information Influx International Conference (Amsterdam, 2-4 July) an expert panel considers the ramifications and potential impact of this and other recent CJEU judgments. IViR researchers will also present the preliminary results of a survey of the Dutch public's views on alternative compensation systems (details here).

In another panel at the same conference entitled “Filtering Away Infringement: Copyright, Injunctions and the Role of ISPs” the focus will lie on the related question of the role of intermediaries in stopping illegal file-sharing. The private copying judgment has repercussions for ISPs too. In Case C-314/12, UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH, the Austrian referring court queried, among other matters, the relevance of the exact parameters of the private copying exception with regard to the interpretation of Article 8(3) of the InfoSoc Directive. That provision treats intermediaries whose services are used by a third party to infringe a copyright or related right as being subject to injunctive relief. The Court concluded that uploaders of infringing content “use the services of intermediaries” in the sense of Article 8(3), which opens intermediaries up to injunctive action. In this way the CJEU avoided discussing the private copying exception in that context. The ACI Adam judgment however would indicate that, even in cases where the Court’s logic in UPC Telekabel would not apply, intermediaries would still not be shielded from injunctions, as the downloader (who indubitably does use the services of her access provider) must also be considered to be participating in the infringement. The implications would be substantial and no doubt will give rise to a lively debate at the conference.

This looks good; this blogger is curious to know what the conclusions of the expert panel might be, and hopes to hear all about it after the event.