Private Copying from Illegal Sources & Three Step Test

Some of Huťko’ s readers may remember case ACI et al. v Stichting de Thuiskopie from 19th of March 2009, where District Court of the Hage held that downloading from illegal sources is an infringement because of the three step test. Huťko just learned that case was overturned by the Court of Appeal (cited bellow from 1709 blog).
The Court of Appeal stated that the private copying exemption in the Dutch Copyright Act does not differentiate between copies made from legal or illegal sources. With reference to statements made by the Minister of Justice, the Court argued that the legitimate interest of the right holders is more adequately protected in a regime that allows downloading from illegal sources. In view of the Dutch government’s statements, such a levy system better ensures that compensation is due to right holders for the use of their work. Thus, interpreting the Dutch Copyright Act in light of the three-step test of Article 5(5) of the Copyright Directive that could limit the Dutch private copying exemption would be contra legem, according to the Court.

And this should be respective provision (if not amended) – Article 16c of Dutch Copyright Act.

Reproduction of the work or any part thereof shall not be regarded as an infringement of the copyright in a literary, scientific or artistic work provided that the reproduction is carried out without any direct or indirect commercial motivation and is intended exclusively for personal exercise, study or use by the natural person who made the reproduction.

Huťko does not understand the contra legem argument. In his opinion it is just restrictive interpretation of the respective provision in the light of European law (indirect effect of the directive). Even if we classify this as a teleological reduction, there is no reason to reject it on the basis of being contra legem, while every teleological reduction or analogy is contra legem by its nature. This seems to Huťko as if the court decided that downloading from illegal sources is legal only because otherwise fair compensation have to be rejected as a consequence of Padawan C-467/08. E.g. in Czech republic, the Supreme Court also held (in criminal proceedings) that private copying from illegal sources is legal (5 Tdo 234/2009). Funny part is that fair compensation itself is probably the most important part when interpreting last step of the three test (the interpretation than reminds me this video).

Huťko wonders if this case could finally end up before the Supreme Court (Hoge Raad) and then possibly be referred to Court of Justice (taking into account “reference friendliness” of Benelux courts)? We will see what the future brings…

Update: full text of FTD v. Eyeworks decision here.

Overall, great discussion, especially of the interpretation of three steep test. But Huťko is somehow still not satisfied with the methodology issues involved – historical interpretation prevailing over the aim of provision (if properly understood by Huťko). Hope that CJEU will respond to these nuances in Infopaq II.

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