Dutch unions: legalize illegal filesharing, introduce copyright levy on internet

On Tuesday November 29th, several Dutch associations (Consumentenbond, Ntb and FNV KIEM) will jointly try to convince the Dutch Parliament to stop their plan to prohibit downloading from illegal sources for private use.

The appeal is a response to the plans of state secretary Fred Teeven as set out in the copyright policy priority brief called Copyright 20©20. Teeven’s brief includes a proposal to prohibit downloading from illegal sources for private use. Currently, according to Dutch case law, downloading copyrighted works from illegal sources for private use falls under the scope of Article 16c of the Dutch Copyright act (the so-called home or private copy exception) and is therefore not a copyright infringing act. However, this is on the condition that the person who downloads (copies) should pay a fair compensation to the copyright holder. Momentarily, this private copy compensation is collected via the so-called private copying levy on blank CDs and DVDs. In contrast to downloading, uploading copyright infringing content is an act that does not fall under the private copy exception and is therefore seen as copyright infringement under Dutch law.

Now, the unions lobby to uphold the right to download music and movies from an illegal source for private use. What is also new is that the unions now also want to legalize non-commercial uploading by individuals through a compensation/levy system on internet connection subscriptions. What the unions mean by non-commercial uploading by individuals is unclear. According to Emerce, the unions wish to achieve better compensation for artists by increasing prices for electronic equipment on which movies and music can be recorded or played (for example mobile phones and hard disk recorders), in stead of using the private copying levy on CDs and DVDs.

In April this year, Teeven came up with several plans in Copyright 20©20 including a prohibition for downloading from illegal sources. Teeven’s plans are not worked out in detail yet. The enforcement of a download prohibition is an issue. However, Teeven has  claimed to have no intention to sue individual file shares, but needs this legal foundation to tackle large scaled downloading and uploading of copyright infringing works from illegal sources and sites that offer access to infringing files. It’s however unclear,where the line will be drawn between small and large scale file sharers.

The unions are very critical on Teeven’s proposed plans, but it seems to me that it’s a good development that the government is looking for ways to address the large scaled exchange of copyright protected works over the internet, without payment of any fair compensation to the copyright holders. In short: the enforcement of copyright in the online environment can be improved in the Netherlands. With a download prohibition, the government also gives out a signal to internet users that such behaviour is not reasonable. The (large scale) distribution of copyright protected work is a commercial act, so copyright owners should receive fair compensations.

he Dutch explanation given to the scope of the private copy levy and new ways to store data, artists and owners are now losing revenue. European Commissioner Kroes also stressed that it is devastating that the creative industries are currently losing revenue in these hard times. By no longer allowing downloading from illegal sources under the private copying exception in the Dutch law, the government gives out a clear signal that it is not permissible to use someone’s work without paying a reasonable remuneration. In addition, the download prohibition is a precondition for the emergence of a decent online market for legally acquired movies, music and games in the Netherlands.

The unions’ proposal to legalize non-commercial uploading by individuals through a compensation system on internet connections, is also no solution, but instead raises new problems. For instance, I wonder how the unions see this compensation system in practice. How do you determine the height of the levy? Does it depend on how often a work is used, or is it a standard levy? Does everyone have to pay the same amount, even when one internet user downloads less than the other? And how do you determine the apportionment without monitoring the internet on a large scale, which again is at odds with the right to privacy?

And then we are only talking about the Dutch artist. How will holders in the rest of the world get a compensation for Dutch internet users who upload their work? It seems to me that there are a lot of things wrong with the unions’ proposals.

The Parliament is discussing Teeven’s copyright policy priority brief Copyright 20©20 on Wednesday November 30th.

Sources: Entertainment Business, Consumentenbond.nl, Emerce

Door: Karen Groen