ECJ tightens rules on downloading

ENJOYING a free movie downloaded from an illegal source with snacks and good company has for many Slovaks been a typical way to spend rainy evenings at home. A recent European Court of Justice (ECJ) ruling, however, means that EU member state legislation must regulate such practices more strictly.

ENJOYING a free movie downloaded from an illegal source with snacks and good company has for many Slovaks been a typical way to spend rainy evenings at home. A recent European Court of Justice (ECJ) ruling, however, means that EU member state legislation must regulate such practices more strictly.

“To accept that such private reproductions may be made from an unlawful source would encourage the circulation of counterfeited or pirated works,” says the court’s judgement, published on April 10, “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.”

While copyright protection organisations welcome the decision, some lawyers point out that in combination with the Slovak Criminal Act it may result in a legal situation that is too strict for users, since the law considers any unauthorised copyright infringement a crime. The judgement came into force on the day it was published, in this case April 10.

Until the ECJ published the decision, Slovak legislation allowed downloading content from the internet, ignoring the issue of legality of the source in cases when the user did not upload, sell or share that content further. Downloading a movie from an online database for personal use was technically legal, but downloading the same content using peer to peer software, which simultaneously makes the downloader a sharer, broke the law, Radovan Pala, a lawyer with TaylorWessing e/n/w/c, told the Sme daily.

The decision banning the use of such unlawful sources was expected because otherwise it would violate international agreements and the EU directive, Monika Valentíková from the legal department of Slovgram, a company protecting artists, told The Slovak Spectator.

“The European Court of Justice could not accept a different decision,” Valentíková said. “No legislation can legalise unlawful behaviour or be in conflict with other legislative norms.”

Additionally, the court’s judgement also says that copyright levies imposed on blank data media, on which users can transfer copies of artists’ works, like USB flash drives, blank DVD discs and so on, should not have to take into account the harm suffered by copyright holders as a result of copies made from unlawful sources.

Copyright levies, paid every time people buy such media, go to authors unions as compensation for sharing pieces of art without paying for them.

Levies in Slovakia do not count on compensation for using unlawful sources, so this decision will not affect the price of those forms of media, Magdaléna Debnárová, the head of Lita, the society of authors, told The Slovak Spectator.

The Culture Ministry is preparing a new Copyright Act to reflect the changes in EU copyright legislation, which they plan to pass in the legislative process in late 2014, Natália Mizereová, the ministry’s spokeswoman, told The Slovak Spectator.

Fighting crime

Since any unauthorised copyright infringement is a crime, the decision leads to a situation where intentional downloading of a single movie, with the knowledge that it is from an illegal source, is subject to punishment, even if it results in the loss of just a few euros. The level of punishment depends on the amount of the financial damages. Damages crossing the €26,600 threshold could lead to imprisonment for at least one year, and those exceeding €133,000 could lead to at least three years in jail, the Pravda daily reported.

Even if it appears that artists’ losses from unlawfully downloaded content are minimal, this view is incorrect because the massive appropriation of culture products resulted in a decrease in their value, Anton Popovič, the head of the Slovak Performing and Mechanical Rights Society (SOZA), told The Slovak Spectator. For example, if grocery store owners stopped to notice small thefts, it would probably result in the rise of food theft and endanger the whole system of the business and their ability to make a living from it, Popovič said.

“To put it in different way, if someone steals one orange from the greengrocers it could be said that nothing terrible happened,” Popovič said. “However, imagine what will happen when at the same time 100 different people take one orange in the same store.”

Artists’ losses are heavy and should not be downplayed because copyright infringement is widespread, according to Debnárová.

However, the wording of the Slovak Criminal Act in the case of copyright infringement is too vague since it does not sufficiently reflect the context of such actions, experts say. Therefore the impact of the court’s judgement should be analysed to decide whether the legislation should be revised or not, said Lucia Kurilovská, a lecturer at the Department of Criminal Law, Criminology and Criminalistics at the Faculty of Law of Comenius University, as quoted by Sme.

Valentíková disagrees that the existing legislation is too vague, explaining that it is important to protect artists’ intellectual property and the Criminal Act should mainly prevent wrongdoing with punishment as the last option. She admits however that it may be inevitable for each case to be judged individually.

To solve this situation independent MP Miroslav Beblavý of Sieť party proposed to add an exception to the Criminal Act for people who download content for personal need even they use unlawful source, the TASR newswire reported on May 3.

On the other hand, Juraj Bednár, the owner of Digmia, an IT services company, opined that the judgment will not introduce significant changes to Slovak legislation at all.

“It is just a good looking piece of paper which says how we should behave in line with European Union [rules], but I do not think that this judgment will result in some specific change,” Bednár said, as quoted by TA3 news channel.

Before forecasting any consequences the decision needs to be properly examined, according to Interior Ministry officials.

“The whole case needs deeper analysis and consultation with other resources and bodies, therefore at this point it is hard to comment on how the judgement will be applied,” Interior Ministry spokeswoman Silvia Keratová said, as quoted by TA3.

Pressing administrators

The ECJ is probably trying to press web page administrators and owners to legalise the content they provide, according to Popovič.

Slovgram expects that the decision will also help people to sue online storage companies that allow uploading and downloading of illegal content, Valentíková said.

The judgement may cause internet services providers to issue greater control of the content in online storage and when they find an illegal downloading source they will block it, according to Bednár. He added that such actions will be complicated since users may call this censorship as they also use such servers for saving legal content, TA3 reported.

However, it should also be possible to prove when common users of those means of storage create copies of protected content knowing that their source is unlawful, according to Valentíková.

Education better than punishment

Instead of punishing people, companies which protect artists should aim for prevention and greater education on the issue. It should start with schools by introducing the issue into the national curriculum, Debnárová said.

Technology has improved the spread of cultural products, but at the same time worsened the situation for artists. They also have a right to make a living from their job, Debnárová said. In an ideal situation consumers should have easy access to artistic content while artists receive an adequate salary for selling it, she said.

“The issue of intellectual property protection is a historically neglected issue even in our education system,” Popovič said. “Young people are not confronted with knowledge about who an author is, what they do, and why they have the right for protection of their pieces of art.”

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