Downloading From Unlawful Sources Is Copyright Infringement


The European Court of Justice has handed down its eagerly awaited decision in ACI Adam v Stichting De Thuiskopie.

The ECJ ruled that the private copying exemption only applies to copies derived from lawful sources. The EU Copyright Directive precludes national legislation which makes no distinction between private copies made from lawful sources and those made from unlawful sources.


According to Article 5(2)b of the EU Copyright Directive, copyright owners are entitled to a fair compensation if private copying is exempt from copyright protection by national law. In the Netherlands, copyright holders are compensated by a system in which manufacturers of carriers are required to impose levies on their products. The revenues of these levies are paid to Stichting De Thuiskopie, which divides the revenues among all copyright holders as compensation.

The dispute between ACI Adam and other manufacturers of carriers and De Thuiskopie is centred on the question: when determining the amount of the levy, should only the copies from lawful sources be taken into account?

The Dutch Copyright Act does not differentiate between lawful and unlawful sources. When adopting a private copying levy system, the Minister of Justice held that collecting remuneration from consumers who are copying is, in addition to the privacy concerns, in practice impossible. Because of this statement, the Dutch Court of Appeal was of the opinion that the exemption also applies to copies from unlawful sources. The Supreme Court, however, ruled that the interpretation of the Directive is decisive and referred questions to the ECJ on whether the private copying exception includes copies from unlawful sources.

ECJ's reasoning

First and foremost, the ECJ stated that according to the settled case law of the Court, the provisions of a directive which derogate from a general principle established by that directive must be interpreted strictly. If the member states had the option of adopting legislation which also allowed reproductions for private use to be made from an unlawful source, the result of that would clearly be detrimental to the proper functioning of the internal market. Similarly, the objective of proper support for the dissemination of culture may not be achieved by sacrificing strict protection of copyright or by tolerating illegal forms of distribution of counterfeited or pirated works. Consequently, the ECJ held that national legislation which makes no...

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