Is sharing caring?

The existence of digital content vs. copyrights

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“Nowadays, we encounter the issue of downloading copyrighted material. It does not matter whether you are downloading the newest season of your favourite series or a college textbook, these examples of downloadable digital content are related to some artist or authors’ rights: the copyrights. Why and how does this affect the authors? Moreover, how far can we go in protecting these rights?”

We live in a world with plenty possibilities to obtain information and data. Downloading the newest season of Game of Thrones and uploading Drake’s latest hit while you’re buying an e-book and then immediately sell it as a second hand ‘book’ on another online market place. You got what you needed; the download, so why not sell it right away?

I am sure all of you have experienced that guilty feeling of doing something illegal when downloading the newest film or another episode of your favorite series. Yet, nowadays it is so easy, you probably wonder if it is illegal at all, especially when it concerns the sale of your legally bought e-book on an online market place. All these examples of downloadable digital content are related to some artist or authors’ rights: the copyrights. This means it affects an artist or author in some kind of way as well.

Copyrights and intellectual property

Copyright is a form of intellectual property protection and is available for original works of authorship that are fixed in an appreciable form, whether published or not. It awards the author an exclusive right to reproduce and publish his or her original work, under condition of exceptions. The original purpose of copyrights is to promote the creation of artistic and cultural products. Creating these works takes a lot of time, money and effort. Because of this, creators of original work need and deserve the guarantee of a certain income, which is something copyrights try to provide.

The first Dutch law involving authors’ rights was completed in 1912. Since 1912, copyright rules have been rewritten and adapted multiple times. The main reason for rewriting and adapting was the emergence of technological developments that urged revision of intellectual property laws, specifically copyrights.

In the last decades of the 20th century, the ceaseless introduction of new technical products challenged these Dutch laws. Products such as radio, television, computer hardware and sound recorders made it possible and a lot easier to publish and reproduce certain works. These developments required an expansion of the copyrights, especially specific regulation for products such as software. On the other hand, intellectual property protection was needed for new digital ‘information products’ what lead to the introduction of for example the ‘Databankenwet’ (Database Act) in 1999.

Digital content shared in a split second

Lawmakers had been able to adapt the laws to new technological developments. Yet, this was merely the tip of the iceberg. During the same period the introduction and increasing popularity of technological high advanced computer networks, the Internet and World Wide Web, created even more options to publish and reproduce authors’ protected works. Nowadays, various platforms make it possible to disseminate, exploit and exchange digital content. Within a split second authors’ original works are accessible for a vast international audience by the help of for example Netflix, Spotify, Pirate bay and At first sight, this seems to provide big advantages for both authors and customers. Most of the time this is true: authors give certain companies their agreement to exploit their work in exchange for money and any customer with simple internet access is able to enjoy it. However, on the other hand, various internet platforms offer free downloads of digital content without permission of the authors.

“Many people enjoy the benefits of illegal free downloads of digital content.”
Illegal downloads have legal consequences

Many people enjoy the benefits of illegal free downloads of digital content. It is easy because you don’t have to leave the comforts of your own couch, it is effective because you get to enjoy the same content you would’ve otherwise spend cash on, and therefore, finally, you save some of your money. Only, this new way of consuming artistic content puts creators at a disadvantage since they are not paid fairly for their work. Instead, third parties take advantage of the maker’s original works.

Discussions resulted in new legal developments. In 2014, the European Court of Justice forbade the downloading of copyright protected works, next to the already forbidden uploading. Unfortunately, law enforcement appeared to be very difficult due to the international character of the Internet. Furthermore, this still did not provide answers to the always remaining grey area. For instance, if someone buys an e-book, the ‘book’ becomes someone’s property. Is he or she then allowed to sell their ‘book’? According to the Court of The Hague this depends on the applicability of one of the limits of intellectual property rights: exhaustion. In June 2018, The Court of The Hague referred this question to the European Court of Justice.

At this point, there are no further developments to report on but an acknowledgement of the right of exhaustion may cause more enforcement related problems. In some way, we find ourselves commenting on developments that are already at an advanced stage.

Copyright filter contrary freedom of expression?

On September 12, 2018, the European Parliament gathered and voted for an update of online copyright rules that goes back 17 years. The Parliament’s main purpose of this update is that digital companies will acquire a bigger responsibility concerning the content of their online platforms. The Parliament wants to ensure that these companies, who collect and share digital content, reward authors for their work. They introduced article 13: companies need to provide a ‘copyright-filter’ that screens protected content uploaded by customers on the internet platform. The system screens the content before it is uploaded and blocks access if they failed to pay contribution. When we are talking about addressing infringements on copyrights, this might be a good step. But, what about our freedom of expression if everything we want to upload is subject to inspection? #deletearticle13 or #savetheauthor?

Renske Fokkema

  • European Parliament, ‘Parliament adopts its position on digital copyrights rules’, 12-09-2018.
  • Nederland ICT, ‘Europees Parlement stemt voor aanpassing online auteursrecht’, 14-09-2018.
  • RWV Advocaten, ‘Online doorverkopen van e-books toegestaan?’, 20-06-2018,
  • Rb. Den Haag 12-07-2017, ECLI:NL:RBDHA:2017:7543.

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