EU Court ruling brings free legal downloading one step closer

Free downloading of music or films from the Internet, though still illegal, has received significant support from the European Court of Justice (ECJ), which ruled yesterday that Internet providers cannot be obliged to release customers’ personal data during civil legal claims raised by copyright owners.

The ruling followed legal action begun by Promusicae, a Spanish musical and audiovisual producers’ organisation, which demanded that Telefonica, the Spanish Telecoms group and Internet provider, disclose the personal data of its Internet customers. Clients were accused of illegally downloading audiovisual files through the Kazaa programme, thus violating copyright rules.

The ECJ ruled in favour of Telefonica by stating that current EU rules (see below links) “do not require the member states to lay down an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings”.

On the other hand, the Court admitted that the European legal framework “does not preclude the possibility for member states to lay down an obligation to disclose personal data in the context of civil proceedings,” according to the press release issued by the ECJ.

The Court acknowledged that the protection of copyright is one of the fundamental rights recognised by the EU legislation. It thus required member states to guarantee a “fair balance” between protection for the authors and respect for privacy, both equally considered to be fundamental rights.

The conflict between these two basic principles occurs only in case of civil proceedings. It does not appear in penal claims, where privacy protection is clearly less guaranteed.

The ECJ ruling came in the same week as an annoucement by peer-to-peer (P2P) digital music site Qtrax that it had struck deals with the four major music labels to allow free and legal file-sharing on its website. The labels would be compensated though advertising pay-offs. The announcement was made at Midem, the world’s music market, which takes places in Cannes every year.

The concept behind the Qtrax announcement, if applied, would revolutionise the music sector making iTunes electronic shops and other online music boutiques obsolete. The major companies (EMI, Universal, Warner and Sony/BMG) quickly denied the substance of the Qtrax announcement.

In a recent legislative initiative, the European Commission seemed to move more clearly in favour of copyright protection by proposing new measures to curb illegal file-sharing, labelling it “online piracy” (see EURACTIV 10/12/2007). The Commission estimates that the online music market in the EU 25 will be worth 8.3 billion euros by 2010.

The European Parliament is currently studying a draft report, prepared by Socialist MEP Guy Bono, which calls for repressive measures against free downloading to be ruled out in any new legislative proposals regarding the online music sector.


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