Monday 6 December 2010

Downloads and levies: it's Double Dutch Day!

In "Copyright owners better off in a regime that allows downloading from illegal sources" this weblog reported on the 15 November ruling of the Court of Appeal of the Hague in Eyeworks v FTD. Today the IPKat posted the an English translation of the judgment in full (here) together with a short note from Dutch copyright practitioner and scholar Dirk Visser.

Dirk has now been able to procure an English translation of an even more complex ruling, on some of the same issues and decided by the same court on the same day, in ACI Adam BV and others v Stichting de Thuiskopie and another (here).  Explains Dirk:
"Here is another decision by the same Court from the same day, parts of it are identical (on the private copying from an illegal source), but it is an entirely different case, between different parties, brought by the blank media industry against the home copying levy organisation in the Netherlands. This one is (even) more complicated.

The Court rules that downloading from an illegal source is permitted in The Netherlands -- and has to be compensated by ‘fair compensation’ (through levies or otherwise). The Court considers that this might be in violation of the Three-step test of article 5.5 of the Copyright directive, but also that an interpretation of Dutch national copyright law in line with the directive on this issue would result in an inadmissible interpretation ‘contra legem’".
Dirk feels disappointed that neither case got as far as a reference to the Court of Justice of the European Union and, in terms of clarifying the principles involved and ensuring that courts throughout the EU take the same line ie is quite right -- though a case can be made for saying that, if the Court of Appeal of the Hague could determine the issues before it without needing external help, it was right to do so.

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