1. 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

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

3. 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

4. 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)

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

6. 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)

7. 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)

8. 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

9. Thank you!