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Downloading music and videos

What is allowed, what has to be considered?

Downloading songs and movies is very popular. But consumers are often unsure whether it is legal or not.

The right to private copying

Almost all music files and movies are works protected by copyright. The originator who created the work has the right to determine its usage. He can reproduce or duplicate it or publish it online. The holder of such exploitation rights is the only one who can decide about the usage. He can decide to exclude everyone else from it or allow some or all sorts of usage (usually against payment). In most cases, the originator sold his exploitation rights to an agency or transferred them to a collecting society.

Some types of usage can't be forbidden by the rights holder. An important example: the private copy - the so called right to "reproduce for private use". It enables a natural person (which means a human being, not a corporate body or association) to copy a work without the permission of the rights holder, but only for private use and not for commercial purposes.

The professional use of a copy is not allowed. Consumers can't invoke a private copy if its purpose was to make it publicly available.

Copy protection

The copyright law forbids any circumvention of technically effective copy protection measures. This conflicts with the right of private copying as rights holders often protect their works against copying. It is forbidden to distribute or use programmes that help circumventing such protection.

Using Internet file sharing platforms

On Internet file sharing platforms, files are publicly offered to download. This means: If someone downloads a file from such a platform, he actually duplicates it.

Such platforms are not forbidden per se. If the files are not or no longer protected by copyrights or if the rights holder permitted the sharing, the public contribution of the files is legal.

But in reality, most of the files on such sharing platforms are protected by copyright. Their contribution without the permission of the rights holder therefore is a violation of copyrights.

Note: The settings of many file sharing programmes are adjusted in a way that automatically makes your data available to others. For example: If you download files, they become available to others. This means that you provide these files to others. If you use a programme that allows it to disable the upload function or a programme which only enables you to download files without providing data yourself, you are not violating copyrights (as long as it's only a private copy).

Legal "grey area"

Until today, this topic has not yet been clarified in court. Some lawyers share the opinion that downloading copyright protected files from an Internet filesharing platform is a violation of the right of reproduction. Others think that the person who only downloads files can refer to the right to private copying (as long as he only uses the downloaded file privately and doesn't provide it to others).

The issue is whether a legal private copy is possible when an illegally produced template is used. Because in most cases, the files are provided by participants who downloaded them from others or who circumvented copy protection (without permission of the rights holder).

Germany

German copyright law regulates clearly that a private copy can only exist when no illegally produced or illegally published template was used. If the file, that is being downloaded, is provided or produced due to a copyright violation, the person who is "just" downloading it can't refer to the right to private copying.  

Austria

The Austrian legislator doesn't have such clear rules. Several lawyers share the German point of view, because otherwise the private copy would cure the unlawfulness of the template and the free download from the Internet would affect authorised distribution channels.

However, there is no precondition of a legally produced template according to the Austrian law.

The unlicensed download of copyright protected music and video files may not be ok, but nevertheless has not yet been assessed as illegal by court.

Offering files is illegal

What has been clarified in court is the legal position of providing (uploading) files on file sharing platforms: it is illegal. Who offers his data to others can in no case refer to the right to private copying as it is not allowed to make private copies available to the public.

The rights holder is entitled to demand omission of uploading the file, removal of the illegally gained files and the payment of an appropriate usage fee. "Appropriate" means the amount that contractual partners would have agreed on when the rights holder would have given his permission to offering files on an Internet file sharing platform.

This also applies if the user of the file sharing platform didn't know that he was violating copyrights. It is pointless to state lack of (technical) knowledge.

If the rights holder can prove fault of the seller/provider, he can claim damages. This includes the resulting loss of earnings (the amount has to be verified by the rights holder).

Copyright also allows the rights holder to simply double the appropriate usage fee as lump-sum compensation, without the obligation to verify any concrete damage.

Are criminal proceedings possible?

An illegal duplication for personal or private use only has civil consequences.

However, who violates the right of providing by offering/uploading files on an Internet file sharing platform risks criminal proceedings. Such copyright violations are so-called offences with private prosecution which are only prosecuted upon the request of the injured party (the rights holder).

Summarised: The upload of files on an Internet file sharing platform without the permission of the rights holder definitely is illegal. To be on the safe side, you should also refrain from downloading files.

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