Coexisting digital exploitation for creative content and the private use exception

Abstract

The private copy exception is a staple in most national copyright laws. It has its roots in the analogue era and has had its difficulties adapting to the new digital environment. The development of new forms of exploitations for protected content has put the exception under pressure. Relatively, new business models allow users to download and stream digital content on multiple devices at home and on-the-go. This article seeks to explore whether the private use exception under Article 5(2)(b) of the Information Society Directive (InfoSoc) is compatible with different online business models. First, the exception at the European level and at selected national levels (UK, FR, DE) is analysed as to its normative content. Second, limitations to the private use exception in the terms of use of download- and streaming-based services are compared and discussed as to their relation with the exception. Finally, the three-step test of Article 5(5) InfoSoc is applied to the private use exception in different scenarios. The article concludes with a brief summary of the findings.