The European Court of Justice ruled yesterday that the Netherlands must make downloads of pirated content illegal. The ruling is not yet available online, but according to the press release (PDF), the Netherlands’ existing system of banning uploads while legitimizing downloads via a piracy tax on media (hard disks, flash drives, CDs, etc) does not comply with EU laws and policies.
This ruling was requested by the Hoge Raad der Nederlanden on behalf of a group of manufacturers and importers of blank media. These companies were objecting to having to collect a tax which covered the copying of pirated content in addition to private copying of legitimately purchased content.
Many countries have a similar tax on blank media (Canada, for one), but few countries agree with the Netherlands interpretation of copyright law (Switzerland does). As I understand it, the Netherlands had an explicit piracy tax because the courts had decided that there was no way for consumers to know for sure that the files they were downloaded were legal or pirated.
As much as I dislike the concept of a tax on blank media, I don’t buy that interpretation. And apparently the European Court of Justice doesn’t care for the idea either.
From the press release:
In its judgment delivered today, the Court points out that if Member States were free to adopt legislation permitting, inter alia, reproductions for private use to be made from an unlawful source, the result of that would clearly be detrimental to the proper functioning of the internal market.
Similarly, the objective of proper support for the dissemination of culture may not be achieved by sacrificing strict protection of copyright or by tolerating illegal forms of distribution of counterfeited or pirated works.
The press release goes on to point out that the piracy tax is tacit approval for the piracy, which is counterproductive to the original goal of the private copying levy:
First, to accept that such private reproductions may be made from an unlawful source would encourage the circulation of counterfeited or pirated works, which would inevitably reduce the volume of sales or of lawful transactions relating to the protected works and would consequently have an adverse effect on normal exploitation of those works. Secondly, the application of such national legislation may unreasonably prejudice copyright holders.
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