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Case 3 - Culture – Third Party Access (Modelled on P2P File-Sharing)

Published online by Cambridge University Press:  17 December 2022

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Summary

A.1. BASE CASE

Carla, a 15-year-old teenager, downloads and uploads songs from the Internet and exchanges CDs with her girlfriend Karen. She is now sued by the record company ‘String’. Will an injunction be granted?

A.2. EDITORIAL NOTE

This case analyses the national provisions implementing Article 5(2)(b) of Directive 2001/29/EC on Copyright and Related Rights in the Information Society. This provision in the Directive is not only optional, but its wording also left member states some latitude to decide on how to implement it. This explains the variations in the member states’ implementing legislation.

As the application of copyright rules is always very fact-specific, the simple wording of this question proved to be ambiguous for most country reporters. The question was formulated with the aim of giving respondents greater leeway to describe their national law and how it would apply to this general factual situation. Here, Carla downloads from the Internet, but the case is silent both on the technology she uses and on the source of her download. If Carla downloads songs from the Internet by using peer-to-peer file-sharing soft ware, it is not unreasonable to argue that most file-sharing soft ware nowadays involves not only an act of downloading but also an act of uploading. The source of Carla’s download may be legal or illegal. The case also does not specify whether the exchanged CDs are the result of the reproduction of the downloaded songs or if they were lawfully acquired from another (analogue) source. All these technical features matter and are likely to influence the outcome of the case. The answers to the question vary as country reporters have given their own interpretation of the facts and of the applicable law.

A.3. COUNTRY REPORTS

(1) BELGIUM

I. Operative Rules

Merely downloading songs would fall under the home copy exception. However, exchanging the CDs with a friend would go beyond the scope of this exception. Therefore, an injunction would probably be granted.

II. Descriptive Formants

  • – Article 5(2)(b) Directive 2001/29/EC;

  • – Articles 22§ 1 5° BCA (Art. XI.190 9° BCEL) and 46§4 BCA (Art. XI.217 7° BCEL).

Type
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Information
Publisher: Intersentia
Print publication year: 2022

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