Vasiliki Samartzi, Queen Mary, University of London On uploading and downloading copyright works: The potential legality of the users’ interest in engaging in such acts – The case of the EU and the US paradigm Vasiliki Samartzi, Queen Mary, University of London

The rights Make available right Article 8 WCT 1996, Article 2 EUCD Uploading Reproduction right Article 9 Berne C., Article 2 EUCD downloading

Downloads Article 5(2)(b) EUCD (private copy exception) Application of the private copy exception: Importance Justification (case law, e.g. RapidShare decision 2010) The technologies: centralised, torrents, one-click hosters

Lawful source Lawfulness of the source not an issue in Canada, Netherlands, France (?) BUT Germany it is if from an “obviously unlawful” source AND Greece: Art.18§1 N.2121/1993 “… a work that was lawfully published can be reproduced, without the author’s permission and without remuneration, on condition that reproduction is made for private use of the person who makes it. Use within an enterprise, an agency or an organisation is not private use.” France (?) Inserting an implied condition of a lawful source would be problematic and call into question the copyright balance (Geiger, 2008)

Three-step test Three-step test: Art.9 Berne C. Agreed statement concerning Article 1(4) WCT Art.5(5) EUCD

The three steps Certain special cases Conflict with normal exploitation - empirical approach: “refers simply to the ways in which an author might reasonably be expected to exploit her work in the normal course of events. […] A further kind of use that would not conflict with a normal exploitation would be one in respect of which there is no realistic possibility that the copyright owner would be able to enforce her rights, either by way of refusing permission or obtaining a fee by free negotiation” (Ricketson 1998, 1999, 2003) - qualitative approach: draw a line between exploitation forms of considerable importance and of less importance, cover not only actual markets but also future ones (Senftleben, 2004) - relevant markets Not unreasonably prejudice the legitimate interests of the right holder (proportionality test, compensation, levies, compulsory licenses)

Sharing while downloading Share (uploading) while downloading -The user is not aware of the sharing and has not the ability to stop it - Infringement of the communication to the public right by leaving protected works on open part of hard disk Share (uploading) always infringing except, arguably, one click-hosters, US actual dissemination theory (“distribution […] for purposes of further distribution” 17 U.S.C. §101)

Conclusions Exception preserved in the case of downloading when it does not involve simultaneous sharing Adopt favourable to the user interpretation of the three-step test Works are DRM-free Compensate the right holder

Thank you!