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Consumers’ FAQs on copyright: downloading from internet

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.

‘Downloading’ a work protected by copyright from the internet entails an act of reproduction. In principle, acts of reproduction are covered by the author’s exclusive rights. In practice, the author may always decide to authorise third parties (e.g. internet users) to use his or her work in a certain way. In addition, the Member States’ copyright laws allow certain uses without the author’s authorisation, as long as certain conditions are fulfilled. At EU level, the right of reproduction has been broadly defined as ‘the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part.’

In Belgium, Bulgaria, the Czech Republic, Denmark, Germany, Estonia, Spain, France, Croatia, (Cyprus), Latvia, Lithuania, Hungary, (Malta), the Netherlands, Austria, Poland, Portugal, Romania, Slovenia, Slovakia, Finland and Sweden, consumers may download works within the framework of the private copying exception. The work found on the internet must have been uploaded there with the rights holder’s authorisation. The download must be made for personal, non-commercial use and the author must receive fair compensation for the use.

In Italy and Greece, although there is a private copying exception, downloading works from the internet appears not to be exempted on the basis of that exception. In Italy, the private copying exception, ‘which refers to copying for strictly personal and non-commercial use, is reserved to the user who has accessed or acquired a copy of the work in a legitimate way (i.e. with the authorisation or licence of the copyright owners).’

According to the Greek Copyright Office, downloading a work from the internet would, unless authorised by the rights holder, probably be considered to contravene the ‘three-step test’. This is a provision that was originally included in international copyright law to establish legal criteria for the Member States when implementing limitations and exceptions in their national laws.

At EU level, the ‘three-step test’ is laid down in Article 5(5) of the Information Society Directive. It requires that each of the ‘exceptions and limitations’ described in Article 5 ‘shall only be applied in certain special cases (1) which do not conflict with a normal exploitation of the work or other subject-matter (2) and do not unreasonably prejudice the legitimate interests of the rightholder (3).’

There are currently, however, some important discrepancies about how to understand these conditions, which have been construed differently by courts at national level. A uniform reading is lacking at EU level. Especially in the context of digital private copying by consumers, the ‘three-step test’ can therefore cause additional uncertainty when trying to define what is permitted and what is not.

Alongside the private copying exception, downloading may be lawful on the basis of other exceptions such as, for example, use for the purpose of research, teaching or private study (such a defence is also available in the United Kingdom and in Ireland), for information purposes or for the needs of persons with a disability.

A recurring example that many national experts name are ‘Creative Commons’ or ‘open content licences’, by means of which creators may allow consumers to use their work in certain ways. Such licences may only authorise specific uses, for example, non-commercial ones. It is therefore recommended that consumers read the terms of use carefully.

The Spanish expert also mentions the theoretical possibility of implied licences, that is to say, licences implicitly derived from facts. In theory, courts ‘might imply the existence of an implicit licence to download any content which is lawfully posted online (by its copyright owner) without any technological or contractual restrictions preventing it.’ However, no relevant case-law in Spain is cited.

Regarding the download of ‘parts’ of works, the decisive question is whether those parts are protected by copyright themselves. If they are, there is no difference between downloading parts of a work or the entire work. Usually, ‘parts’ are only protected by copyright if they fulfil the general requirements of protection. In Germany, for example, parts are protected ‘if they are personal intellectual creations by themselves and not only, for example, individual words or smallest or banal excerpts from a work’. In Malta, a reproduction of an insubstantial part of the work would not entail copyright infringement. ‘In such cases, there may indeed be a copy but not one that is ‘substantial’ enough to give rise to copyright infringement.’