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Netherlands: Rejection of Ban on Illegal Downloading and Other Copyright Policy Motions

(Jan. 7, 2013) On December 20, 2012, the Staten-Generaal (the Dutch parliament) adopted a motion rejecting a ban on illegal downloading of electronic material and passed instead a measure to broaden the scope of copyright-related fees imposed on electronic devices, effective January 1, 2013. The legislators voted, in all, on four motions having to do with changes in copyright policy. (Robert Briel, No Downloading Ban in the Netherlands, BROADBAND TV NEWS (Dec. 21, 2012); Dutch MPs Reject Ban on Illegal Downloads, MSN NZ (Dec. 22, 2012).)

Prohibition of Ban on Illegal Downloads

By virtue of the prohibition of the illegal downloading ban, the Dutch authorities will not force Internet service providers (ISPs) to block private users from Internet access, in contrast to the “three strikes” rule adopted in <?France. (Briel, supra.) The French measure imposes fines on and ultimately severance of the Internet connection of those who illegally download material. (Dutch MPs Reject Ban on Illegal Downloads, supra; see also Nicole Atwill, France: New Administrative Authority in Charge of Fighting Internet Piracy Begins Operations, GLOBAL LEGAL MONITOR (Nov. 4, 2010).) Dutch MPs contend that it would be better to handle the problem of illegal downloading “by improving and simplifying the provision of legal content.” (Briel, supra.)

As expressed by the author of the motion, MP Kees Verhoeven, “[T]he lower house has chosen vital copyright modernisation within the limits of everyone’s freedom on the internet … . Banning downloading doesn’t really resolve the problem of illegal downloading and raises problems concerning the privacy of individual users.” (Dutch MPs Reject Ban on Illegal Downloads, supra.)

Home Copy Fee

The adoption of the expanded “home [or private] copy fee” (thuiskopieheffing) will affect consumer electronic devices, including PCs, laptops, tablets, smart phones, hard drives, and PVRs (personal video recorders). A similar fee has already been levied on blank media such as writable CDs, DVDs, and tapes. The Order of October 23, 2012, which revised the previous fee rules, was published in the Official Gazette of the Netherlands on October 25, 2012, and entered into force on January 1, 2013. (Order of October 23, 2012 [in Dutch], OVERHEID.NL.)

This new administrative regulation is based on article 16c of the Copyright Act, on fair remuneration for reproduction of an author’s work in or on a product. Under item 6 of article 16c, the Dutch government is authorized to stipulate detailed rules with regard to the products and the “level, chargeability, and form” of equitable remuneration for the author, i.e., the amount of fees due. (Copyright Act, art. 16c(6); Killan & Rieger-Jansen, supra.) (Auteurswet [Copyright Act] of Sept. 23, 1912 (last amended July 12, 2012, in force on Jan. 1, 2013), OVERHEID.NL; Armand Killan & Manon Rieger-Jansen, Dutch Get New Copyright Levies for Electronics/Storage Devices (Oct. 30, 2012).)

The fee introduced on January 1, 2013, to be in force for one year, ranges from €5 (about US$6.60) for computers and laptops to €1 for external hard drives. The specific fee charged will depend on the storage capacity of the device, State Secretary for Security and Justice and Minister for Migration,Fred Teeven told MPs in October. (Government Puts Home Copy Tax on Smartphones, Tablets, DUTCH NEWS.NL (Oct. 25, 2012); Dutch MPs Reject Ban on Illegal Downloads, supra; for the list of items and fees, see, e.g., Killan & Rieger-Jansen, supra.) The money raised will reportedly go to a special foundation that will divide up the funds among the copyright holders. (Government Puts Home Copy Tax on Smartphones, Tablets, supra.)

The new list “is relevant to a vast number of companies internationally,” according to one international law firm’s commentary, because of the broad variety of electronic devices it covers. The list is particularly significant, moreover, because “the Netherlands is considered a gateway to Europe with important import hubs” through which many electronics and storage media manufacturers import or stock their products for marketing in Europe and beyond. (Killan & Rieger-Jansen, supra.) The Order does not make clear how products imported into the Netherlands for use in other countries are to be handled, the commentary points out. (Id.)

Some stakeholders have long advocated imposition of an electronic device fee, but others, such as HP and Dell, “fear the costs of such a levy will be very high and plan to take the Dutch state to court over the issue.” (Briel, supra.) Moreover, one of the motions adopted on December 20 called upon the government to abolish the home copy fee scheme from January 1, 2014, and adopt an alternative enforcement mechanism that focuses solely on large-scale and/or commercial copyright infringements. (Moties VAO: downloadverbod, ISPs als politieagent, afschaffing thuiskopie per 2014 en settopboxen, IE-FORUM.NL (Dec. 12, 2012).)

Other Relevant Motions

The two other motions on copyright policy adopted by the Parliament on December 20 called on the government to ensure that ISPs will no longer be used as policemen to block (parts of) the Internet and to let lapse the home copy levy on set-top-boxes with hard disk drives. (Id.)