Every movie, series or music lover with a little technical knowledge has most likely done it at some point: illegally downloading and/or streaming content, for personal use. Especially if the content is unavailable in Belgium in a legal manner, it is quite tempting to do so.
In the past, the (il)legality of this was a complete grey area due to gaps in the legislation. Thanks to understandable rulings from the European Court of Justice, this ambiguity has been behind us for quite some time now. Nevertheless, there still seems to be insufficient awareness of the illegality of such copies of content. Time for a little recap?
About which legislation are we talking here?
In the case of (il)legality of downloading and streaming content, we’re dealing with copyright.
If a creation has an original form, it’s automatically protected by copyright. Original form” is fulfilled quite easily in case law.
When you want to download or stream a movie, series or music, it’s best to assume that it’s a creation that is automatically protected by copyright.
This copyright protection lasts until 70 years after the death of the author. In principle the creator of the work is the author. And so, it’s the author who holds the copyright to the creation in question. But he can also transfer his copyright to a third party. Because of this, it’s not always obvious who the copyright holder is.
In any case, it is important to remember that copyright includes the exclusive right to reproduce(copy) the creation. The copying of copyrighted creations without the permission of the copyright holder is therefore prohibited.
Downloading: once a grey area
Downloadingcontent is seen in copyright law as making a copyof the original creation in question.
Downloading copyrighted content without the permission of the copyright holder is therefore prohibited.
But there is an exception provided by the legislator if it’s a private copy. This is a copy:
- made by a natural person,
- for non-commercial purposes, and
- intended for personal use within the family circle.
This exception allowed internet users to download content from any website without violating any copyrights. You just weren’t allowed to share it, except within the family circle.
However, this prohibition on sharing or uploading often posed problems if people used torrents or Bittorrents. However, there were ways to avoid this and still be able to download legally, even from suspicious websites or programs.
Unchanged legislation, but more stringent application
Today, the legislation in question is still unchanged. Thus, an exception for private copies still exists.
However, the scope of the exception has been severely limited by the European Court of Justice.
In the groundbreaking ACI Adam case, the Court decided in 2014 that making a private copy is only allowed if copies are obtained from “lawful sources“. Otherwise, you are violating the copyright of the copyright holder.
Obviously, a great number of websites do not fall under the category of “lawful sources”. Often you will already be able to guess if the source you want to download from is lawful or not. If you do not pay for the download or download service, this should raise a red flag. For example, a copy obtained through a P2P network is often an unauthorized copy.
And what about streaming?
Does streaming(from sketchy websites) also fall under this ban? Streaming is not the same as downloading: when you stream content, only temporary copies are made, this in the working memory of the device you are using to stream (for example, your computer or smartphone). This is, by the way, technically necessary to be able to use (read: view and/or listen to) the creation in question.
Making such copies can be placed under the exception of temporary technically necessary copies. After all, the exception of temporary copies that are technically necessary is also an exception to the copyright owner’s exclusive right of reproduction.
Once again, however, the European Court of Justice ruined the party for many internet users.
In the “Film Player” case, the Court ruled in 2017 that the exception of temporary technically necessary copies cannotbe invoked if the temporary technically necessary copy is copied from an “unauthorized source“.
For example, if you start streaming your favorite series online on somewhat sketchy websites, there is a very good chance that you are violating the copyrights of the series.
Illegal, but tolerated?
The European Court of Justice clearly chose not to let only producers bear the burden of illegal downloading/streaming through taxies, but also making sure consumers share that burden by making them explicitly responsible for their owncopyright violations. But was this really such a good decision?
At first glance, the decision seems to provide greater protection for copyright holders.
Illegal downloading and streaming can obviously have a negative effect on the ability to download/stream the same content legally. Illegal downloading/streaming could negatively affect the normal exploitation of the creation. This while the exclusive reproduction right of the copyright holder is intended to protect the normal exploitation by the copyright holder.
The fact that the exceptions of private copying and technically necessary temporary copies cannot be used to justify illegal downloading and streaming (anymore), contributes to the protection of the copyright holder.
However, there are quite a few practical problems involved.
Tracing such copyright infringements requires an enormous number of resources and time, which makes it practically impossible to trace all infringements. In addition, such detective work leads to a situation of considerable invasion of the privacy of Internet users.
When you download or stream content from an unauthorized source, you are effectively violating copyrights.
Legally,there is no doubt about your fault. The question is, of course, to what extent such violations will be punished. Ethically, it is also important to ask what economic impact this illegal behavior is having.
In any case, the message is: think twice before downloading or streaming from an illegal source.
Do you still have questions about downloading or streaming content? Or do you have another question about copyright? Contact us at firstname.lastname@example.org.
Written by Sofie Moore, Legal Adviser deJuristen, and Kris Seyen, Partner deJuristen.