ENDitorial: It is possible that Netflix is legal in Ireland – or not

By EDRi · October 5, 2016

Perhaps it should come as a surprise that copyrighted data are protected in law more rigorously than personal data in Europe.

In data protection law, there is a “legitimate interest” exception: if you are processing personal data because you have a “legitimate interest” in doing so, and if this does not undermine the rights of the individuals whose data are being processed, then this is permitted.

So, what about when you have a legitimate interest in making a copy of a copyrighted work? In Europe, no “legitimate interest” exception to copyright rules exists. Nothing that is even similar to a legitimate interest exception exists in European copyright law. This is in contrast with the US, which has a flexible “fair use” exception. EU law harmonises the rule that absolutely every unauthorised copy of a copyrighted file infringes copyright, unless it falls within the scope of limited, narrow and very specific exceptions, only one of which is obligatory.

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At the request of civil society, including EDRi, and in an attempt to make the rules surrounding copyright clearer for people, the EU Intellectual Property Office (EUIPO) has prepared a “Frequently Asked Questions” (FAQ) document, to explain key points of copyright law for each of the 28 EU Member States. The results are interesting, laying bare the chaos of copyright law in Europe.

The FAQ’s analysis of streaming in Ireland is particularly interesting. The experts that prepared the report say that there is no specific rule in Ireland prohibiting the accessing of an unauthorised streaming site. However, it is prohibited to make a “substantial” copy of content without authorisation. When you view a streaming video, a temporary copy of the content appears on your computer. Therefore, it is possible that this copy could be considered to be “substantial” by a Court and this would then be a breach of copyright.

But if the temporary copy that a viewer’s computer generates when accessing a streaming service might be considered to be a “substantial” copy under Irish law, surely this has consequences for authorised streaming services like Netflix? Yes. However, the good news is that the EUIPO copyright experts argue that, insofar as the copy made by an Irish user’s computer or TV might not be a “substantial” copy, then accessing streaming services “could be legal in the context of a licensing arrangement”.

Accessing unauthorised sites might be legal. Accessing (and paying for) licensed services might be illegal. Or both might be legal. Or both might be illegal. And nothing in the EU’s new Copyright Directive will change this. And the EU wonders why infringements are so widespread.

EUIPO: FAQs on copyright – 15 questions from consumers on copyright

Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society

Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market (14.09.2016)

EDRi: ENDitorial: Copyright combinatronics (16.11.2011)

(Contribution by Joe McNamee, EDRi)