Legal vs. Illegal: Understanding Dutch Copyright

On: July 23, 2011
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About Megan Adams
I have traded my life of Tex-Mex and warm weather in Austin, Texas (yes I was raised on a ranch and no, George Bush is technically from Connecticut) for the gezelling city of Amsterdam to pursue my MA in New Media from UvA. Since graduating in 2006 with a Bachelor degree in Communication from St. Edward's University, I have thrown myself into the fast paced life of PR working at various levels across the technology and consumer sectors. Why new media? My professional interest in the program lies in understanding how new mediums and tools influence the communication landscape and why. In turn I hope to directly apply this "under the hood" insight to my PR approach. My personal interest is vested in exploring the latest and greatest that the internet gods have bestowed upon us. When I’m not accidentally mowing over pedestrians on my bike I enjoy all things music and travel related. My idea of the perfect blog would combine the finer things in life: sandwiches and Lil Wayne.

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If one were to compare the Netherlands to the United States on just a topical issues alone it would seem like oil and water.  The obvious differences, are well, just that – obvious (no need to discuss coffee shops, socialism and the red light district here).  As an expat and self proclaimed geek, the thing that I have found to be most shockingly different is the Netherlands stance on downloading content.  In short, it’s legal to download anything online that you want, even if from an illegal source.  The caveat is that you cannot upload content.

In 2009 FTD.nu, a Dutch forum that allows people to post links to downloadable content, sued the Dutch version of the RIAA (Recording Industry Association of America) – BREIN.  The lawsuit was in response to legal threats that the site had been receiving from BREIN accusing FTD of acting irresponsibly and violating the law.  Earlier this year the verdict was reached and FTD lost the case and ceased operations.

In an effort to understand the implications of the FTD outcome as well as gain further insight into copyright regulations in Holland I contacted the famed attorney for the case.  The attorney, Arnoud Engelfriet offered the following understanding:

The gist of the verdict is that although downloading is legal, FTD was regarded as facilitating uploading, which is not legal. Downloading is legal because the government (the minister) had repeatedly said so and the public has a right to trust what the government says, even if what they say is legally wrong. So the court did not want to violate that trust.

It is correct that in the Netherlands you may download from an illegal source. It is even legal to offer facilities for downloading or to help people download material. You may however not facilitate uploading.

My feeling on copyright is that we need a thorough reform to arrive at a law that balances the rights of both producers and users of content. Right now the producer has a complete say and so he can block any type of use he does not like, even if the user is willing to pay (as was the case with Kazaa). It is an absolute shame that Kazaa was ‘killed’ by rights holders because it was a good innovative concept that deserves protection.

Instead we are seeing more and more repression and draconic measures to enforce the current system, without regard for the collateral damage. Three strike laws, harsh financial penalties, blocking websites for suspected infringement: that’s a lot of work and costs for everyone, just to placate the current models? No. I do not believe that this is workable.

I have yet to see serious challenges on copyright law. Most lawyers quietly accept that copyright law is there and therefore is correct. This is typical of lawyers: we are trained to accept that the law is the law, and that we must argue inside the law. The lawmaker (Parliament) can change the law, and then we just accept that new law.

In addition there is a tendency for rights holders to demand more rights. This happens in all areas of law but in copyright law it is especially pervasive. I think this is because in other areas there is pushback. For example if suppliers of physical goods want less liability for defects, the customers will complain because they then bear the risk. This results in a compromise in the law. For copyright there’s no real group that can counter the push for more rights.

As an avid internet user I fear that this push will seriously harm the Internet as we know it. Copying is inherent in the system and enforcing copyright law thus would cut the heart out of the Internet.
I do not believe that the entertainment industry is harmed as much as they claim by downloading or illegal distribution. First, they seem to make a healthy profit as it is. Second, they are now forced to innovate, e.g. by 3D in theaters, and that is a good thing. And third, nothing says they should be entitled to 100% profits from each and every publication. They are overasking and that is not socially acceptable.

In May, the European Commission laid out plans to move towards a cohesive framework for managing music copyright and digital piracy across regions.  The EU apparently believes that the Dutch system is an ideal model for managing this process:

Asked about ISPs’ role, Mr. Barnier said he was currently approaching the industry and “inviting them to co-operate with us” on fighting piracy, adding that The Netherlands “looks like a good model.”

It’s unclear at this point how this overhaul would come to fruition and what the losses/gains would be for all parties involved.  However, the implications of 27 countries moving to the Dutch system as is, would certainly shake things up a bit entirely.

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