The Government has made clear which direction its policy regarding copyright infringements on the Internet is going to take. Downloading from illegal sources will be prohibited. In principle, consumers will not be targeted, but commercial internet intermediaries will. This announcement still has to be converted into a bill and enacted into law.
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 government 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 government 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 government 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 government 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.
The government 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 government. 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.