Copyright handhaving

Home copying and Copyright enforcement
Seminar ‘Legaal aanbod de norm’
13 november 2015
mr. dr. Bart W. Schermer
Het vraagstuk
Sharing
is
Caring
The issue: downloading and streaming from illegal sources
• ± 25% of the Dutch population regularly consumes movies illegally
• Estimated annual damage is 78 million euros (including VAT)
• New, easily accessible forms of piracy (e.g. Popcorn Time)
Sources: Leenheer J. & Poort J. (2014) Alleen maar nette mensen CentERdata & Instituut voor Informatierecht, juni 2014
Example: Michiel de Ruyter
Source: Excipio
The legal situation in the Netherlands
• Copyright
•
Economic rights (copying & publishing)
• Articles 16b and 16c Dutch Copyright Act (Home copying exception)
•
•
Home copying allowed if there is a ‘reasonable compensation’
Reasonable compensation collected through the home copying levies
• Any exception to copyright must meet the requirements of art. 5(5) 2001/29/EC
Dutch interpretation of the homecopying exception
“On the basis of current and proposed legislation, the copying of
copyrighted works for personal purposes is allowed. The Internet user that
employs Napster, KazaA and similar peer-to-peer services to copy
copyrighted works for personal purposes generally operates within the
margins of Dutch copyright law. This is also the case when the
homecopy is made from an illegal source, that is to say an original
distributed without the consent of the rightsholder.”
Kamerstukken II 2002/03, 28 482, nr. 5, blz. 33
The turn around: ACI Adam v. Thuiskopie (2014)
European Court of Justice:
“…national legislation which makes no distinction between
private copies made from lawful sources and those made from
counterfeited or pirated sources cannot be tolerated.”
Actors (willing and unwilling) in the piracy landscape
End user
Access provider
Copyrighted content
Search engines
Ad revenue
Payment
Providers
Piracy Platform
Picture credit: Gustavb, TPB
Hosting providers
Enforcement approaches
End user
- Criminal law approach
- Private law approach
Piracy platforms
- Criminal law approach
- Private law approach
Involvement of other actors
in the ‘piracy chain’
- Graduated response
- Follow the money
- Delisting
- Site blocking
- Notice and takedown
Germany – Private law enforcement
• Copyright enforcement delegated by industry to law firms
• With a court order personal details are disclosed by ISP (in bulk)
• No research on effectiveness but preventative effect to be expected
Causal effect? Dutch piracy rates vs. German piracy rates
Source: Excipio
France – Mandatory Graduated Response System
• Loi HADOPI
• Originally: ‘three strikes you’re out;  disconnection of Internet access
• Currently: possibility for fining repeat offenders
• 5.4 million 1st strikes, 504K 2nd warnings, 2.9K final warnings
• Effectiveness:
- Effective in the sense that (traceable) p2p transfers have declined
- Displacement undermines effectiveness (e.g. move to other sources)
United Kingdom – Voluntary Graduated Response
• Voluntary Copyright Alert Programme (VCAP)
• Focus on education and awareness (no enforcement)
• Rightsholders contact ISPs, ISPs send educational warning notices
• Program has recently started so no figures available
Italy (and others): Blocking
• Blocking of pirate sites at the behest of the court
• Effectiveness
•
•
Very effective against individual site
Little impact on overall traffic volumes
See also: ECLI:NL:HR:2015:3307!!!!
Picture credit: 3 style life
New business models
But…
VS
But…
Source: Techhive
Integrated approach
+
An integrated approach
 Offering a ‘competitive’ legal alternative
 Consumer education & awareness
 ‘Full spectrum’ supply side enforcement
 Private law enforcement against individual downloaders as ‘ultimum remedium’?