“Implicit licence” and “Private copy exemption” my analysis and comment cc @10comm

Twitterer @10comm made an interesting tweet:

10 COM @10comm
“File Sharing” | Note by Prof Nico van Eijk on request of EU Parliament (May 2011) ivir.nl/publications/v… | #filesharing #acta#piracy

That link does not work for me, so I found Prof Nico van Eijk’s main page where one can get to the relevent pdf:


In it Prof Nico van Eijk opines, “In principle, the copyright owner’s prior permission is required for copying protected content. The copyright owner can grant permission by means of a licence (for instance in the form of a contract entered into with the user or by using alternative licence types, such as Creative Commons licences) or by means of an implicit licence (providing downloadable content on a web site, for instance).

The last part is interesting as it implies that if a provider has made content available, the fact it is available implies to the potential downloader an “implicit licence” which in turn means the downloader has plausible reason to conclude that the content has the copyright owner’s prior permission and is therefore a legal download.
Youtube puts content up and its site and a downloader could, via the implicit licience implied by Youtube having the content downloadable, reasonably conclude that by downloading Youtube content, they are doing to legally. The same goes for any provider; Google, The Pirate Bay, Facebook, etc etc.

Later in the article there is portion on “private copy exemption“:

It is also possible that downloading is rendered permissible by a copyright exception. The best-known and most relevant exception in this respect is the copy for private use, also called the ‘private copying exception’. For the consumer this means that he can be allowed to download content from P2P networks, web sites and social networks (Facebook, Hyves, etc.).

Does these implicit licences and the private copy exemption mean that downloaders are legally covered when downloading content? It would arguably seem so, although I doubt content owners would agree.

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