Private copying in the digital environment

Abstract

Digitalisation and the internet have enabled ordinary individuals to make copies of copyrighted content easily, costlessly and with no degradation in terms of quality. While digital private copying is permitted in Europe under Article 5(2)(b) of Directive 2001/29/EC, it represents a major challenge to the interests of the copyright owners and a thorny issue in the context of digital copyright. Despite the fact that all EU Member States, with the exception of Ireland and the UK, have incorporated a statutory limitation for acts of private copying in their national statutes, there is legal uncertainty as to the scope of this limitation. To be permitted, the use of copyrighted content ought to be private and non-commercial; these concepts, however, do not translate well in the digital environment. For instance, one can only wonder whether facebook friends qualify as a private circle and whether downloading works for free from file-sharing networks is a non-commercial act. This thesis provides answers to these questions and determines the actual scope of the private copying limitation. Yet, perfectly lawful private uses of copyrighted content may have an aggregate impact on the interests of the rightholders in the digital environment, where these activities are more widespread. To deal with the digital impact of private copying, Directive 2001/29/EC sets forth a twofold approach; while private copying is premised on condition that the rightholders are compensated for the unauthorised uses of their works, at the same time, the application of technological protection measures is rigorously protected. We examine the efficacy of these approaches in dealing with digital private copying and their adequacy for policy reasons. This thesis concludes that, even though private copying is permissible under the set of conditions laid down by Article 5(2)(b) of Directive 2001/29/EC, its legitimate exercise is jeopardised in the digital environment due to the fact that this limitation is not mandatory. This means that the ability of end users to make private copies may be either technologically or contractually restricted. Yet, the private copying limitation is a manifestation of the fundamental right to privacy, which prevails over copyright enforcement. We therefore urge for an explicit declaration of the imperative status of the private copying limitation against technological or contractual constraints.