Court of Justice Rules on Private Copying Exception

Court of Justice Rules on Private Copying Exception

In 2012, the Dutch Supreme Court referred two questions to the Court of Justice with regards to the Copyright Directive (Case 435-12 ACI ADAM). The CJEU was asked to consider whether the private copying exception applies to reproductions from lawful and unlawful sources or just the lawful ones where no copyright infringement has taken place.

The Copyright Directive harmonizes all aspects of copyright law, including copyright infringements, across the European Union. It allows member states to lay down an exception to the exclusive reproduction right of copyright holders so that private copies may be made (the private copying exception). It also provides for the payment of fair compensation to copyright holders in order to compensate them adequately for the use of their protected works.

The Dutch Copyright Act allows reproduction of work to be within the private copyright exception, provided the reproduction was not done with commercial intent and was purely for personal use, even if it was taken from unlawful sources like downloads from the internet.

However, the Court of Justice ruled that the private copyright exception may be applicable only in cases where the reproduction is from lawful sources. National legislation which does not distinguish between lawful and unlawful private reproductions cannot ensure a proper application of the private copying exception. The Court held that to accept that such private reproductions may be made from an unlawful source would encourage the circulation of counterfeited or pirated works.

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