Last week, the Supreme Court of the Netherlands gave judgement in a landmark copyright case that will ultimately determine whether the current lawfulness of downloading from an illegal source under the home copy levy in the Netherlands is sustainable within Europe’s Community law.As we highlighted earlier, the Supreme Court asked several preliminary questions to the European Court of Justice on the scope of the Copyright Directive.

In short, under the current Dutch regime, downloading from an illegal source is allowed under the home copy regime by charging a ‘fair compensation’ (home copy levy) on data carriers, while the height of the levy is calculated only on basis of a fair compensation for copies from a legal source and is charged only to the more out dated data carriers, such as CD’s and DVD’s, instead of memory cards and smart phones.

This particular and favourable climate towards piracy in the Netherlands has led to several fueled debates in the field of politics and business on how to deal with and compensate for illegal downloads. Not surprisingly, recent research revealed that the Netherlands has a significant role in the distribution of illegal content via BitTorrent platforms such as The Pirate Bay.   

Earlier my colleague and legal expert Bart Schermer pointed out that, since downloading from an illegal source is Holland’s favourite pastime (it is estimated that some 5 million people out of 16 million regularly download from an illegal source), many politicians do not want to introduce a download ban. Therefore, the majority of political parties and societal organisations in the Netherlands oppose a download ban and propose alternatives such as a radio model and a home copy levy on Internet use. These contrived solutions are, however, “a really bad idea”, Schermer explains, that would make the already questionable situation even worse. 

Recently a legal procedure has started between several data carrier suppliers and the foundation that collects the home copy levy in the Netherlands that questions the sustainability of the Dutch download construction before the courts. Now, the Supreme Court of the Netherlands has brought before the European Court of Justice preliminary questions that will determine the future of the download debate in the Netherlands. Below is a translated summary of the five preliminary questions:  

• Does the private copying regime, possibly in combination with the three-step test, also oversee reproductions from illegal sources or does it only oversee reproductions from legitimate sources?
• If the private copying regime only oversees reproductions from legitimate sources, would application of the three-step test, extend or limit the home copy regime's scope?
• If the private copying regime only oversees reproductions from legitimate sources, is the construction - where reproductions from illegal sources are excluded from both the private copying levy and the exclusive reproduction right of the rights holder - in line with E.U. law?
• To answer the first question, in the light of the three-step test, is it important that technical protection measures to prevent unauthorized private copies are (yet) unavailable?
• Does the Enforcement Directive allow a national court to provide a declaratory judgement regarding the interpretation of the circumstances that are important for determining a fair compensation?

The case has some interesting similarities with the Kino.to case. We will dive into that tomorrow. 

Read more on the Dutch Home Copying Regime on Future of Copyright:

• HR 21 september 2012, (ACI c.s. versus Thuiskopie, SONT) (Dutch ruling of the Supreme Court)
• Why a download levy is a really bad idea 
• 'A radio model for internet is naive'
• Dutch Secretary of Justice responds to questions on copyright reform plans
• Proposal to adopt copyright radio model on the internet
• Majority Dutch Parliament against ‘download prohibition’