Government wants to prohibit downloading from illegal sources and targets commercial internet intermediaries
In a ‘Key Objectives Copyright Letter’ (Speerpuntenbrief
auteursrecht) the State Secretary Teeven of Safety and Justice has
made clear on 11 April 2011 which direction the Cabinet wants to
take with copyright. The key objective will be to promote and
protect new business models on the Internet by means of a bill on
combating infringement-facilitating websites and a reconsideration
of the private copying exception. For that purpose, downloading
from evidently illegal sources will be declared unlawful. The
Cabinet is trying to find a balance between the protection of
rightholders and the importance of an open Internet. The other
three key objectives mentioned in this letter relate to copyright
organizations, copyright contract law and the European
harmonization of copyright.
The Projected Government Policy in Broad
Outline
The criminalization of internet users or the disconnection of the
Internet is out of the question. There will be no ‘three-strikes
legislation’ as has been introduced in France and the United
Kingdom.
Enforcement will be directed against commercial websites and
services facilitating the exchange of files that are not authorized
by the copyright holder. An approach directed at the websites fits
in best with the expected technological development that
downloading will be more and more replaced by streaming. Existing
case law stipulating that websites and services facilitating
copyright infringements are acting unlawfully, will be
codified.
The Cabinet does not want to enforce the rules for consumers who
upload and download files on a limited scale, because this is not
effective and would create legal inequality, since not everyone can
be sued. If rightholders want to protect their rights, they may do
so by making use of technical provisions that protect works or
guarantee that these works will only be available against payment
(legal offer). Statutory guarantees will be introduced to ensure
that rightholders cannot enforce the surrender of personal data
from consumers who are uploading and downloading on a limited
scale. Personal data may only be surrendered if a court has
concluded that someone has been guilty of large-scale copyright
infringements and if it has proved impossible to effectively sue
the website administrator or the hosting provider.
The Cabinet proposes two legal measures. The first is the right
of the rightholder to prohibit downloading from evidently illegal
sources. This is a civil-law measure. Moreover,
infringement-facilitating websites and services can no longer hide
behind the argument that they are only facilitating the downloading
and not the uploading. The State Secretary has observed in this
respect that there is no question of criminalization, because
downloading from evidently illegal sources will become unlawful (in
a civil-law respect) and not punishable.
The second legal measure consists of the offering of options to
rightholders to act against infringement-facilitating websites and
services which are located abroad and are using a foreign hosting
provider. On the basis of existing case law and the regulations for
internet service providers in the Electronic Commerce Directive, it
is already possible to force infringement-facilitating websites and
services from the Netherlands to close down. The
notice-and-take-down code of conduct plays a role here. A p2p file
sharing website established in the Netherlands which is
systematically facilitating and promoting copyright infringements
acts unlawfully towards the rightholder and may be forced by a
court to cease its activities. And if the website is offered from
abroad, the obligation may be imposed on the access provider – as
an ultimum remedium – to block this website.
Conclusion
The Cabinet has made a number of clear choices. Downloading from
illegal sources will be prohibited, just like in almost all other
European countries. Enforcement will not be directed against
individual consumers: there will be no ‘three strikes you’re out’
legislation like in France, and ISPs will only have to surrender
the personal data of consumers in exceptional cases. Enforcement
will be directed against commercial intermediaries. The same line
has been taken by rights organization Brein for some time already.
There will be an amendment of the law to give a statutory basis to
all plans of the Cabinet. This bill will be discussed in
Parliament, and it is expected that before the Act will inter into
force, at least one year will have passed.