Consumers’ FAQs on copyright: the requirement of lawfulness of the source copy

There has been published a very useful guide for consumers and for anyone who is curious about copyright. This guide explains different things, relating to IP rights, in simple way. The project has been commissioned by the European Union intellectual property office.

The Guide aims to give ‘answers to the most frequently asked questions (FAQs) average consumers have in relation to copyright for all twenty-eight EU Member States.’ The present Summary Report highlights the convergences and differences in national copyright laws in relation to the 15 consumer questions.

According to case-law of the CJEU, only copies made from lawful sources may be exempted from infringement under the private copying exception. It is precluded that ‘copyright holders must tolerate infringements of their rights which may accompany the making of private copies’. However, often neither the legal provisions of a Member State nor case-law give the consumer guidance as to when they should assume that a work is offered online in an unlawful manner.

There appears to be a ‘grey area’ regarding sources that are neither ‘obviously’ lawful nor ‘obviously’ infringing. Many national laws require that a work must be lawfully made available to the public, notably, in order for the private copying exception to apply (where such an exception exists). It was stressed that the lack of knowledge does not necessarily exempt the consumer from liability for copyright infringement; that is to say, a user may be held liable even if he or she did not know that the source copy was infringing.

In order to assess whether the source copy is lawful, the consumer must often appeal to his or her experience and common sense. In Denmark, for example, case-law established that when ‘a website offers a very large number of popular works for free, the consumers ought to know that the works are illegal’. There is no safe test for assessing the lawfulness of the source copy. If the consumer should be in doubt regarding the lawfulness of the source copy, it is often suggested that he or she refrain from using the work.

Some experts encourage consumers to make some proactive inquiries and ‘act with reasonable care and diligence’. In this context, it is suggested that consumers could ‘ask around’ in order to make sure that ‘a sufficient number of people believe that the works are legal’; or that they ‘search for more information online’. Additional research could help consumers find out ‘whether the same work is available from other websites (preferably official) and whether this work is usually offered for free or not’. According to the German expert, such additional proactive steps are not expected from the consumer in Germany.