No Place Like Home for Making a Copy: Private Copying in European Copyright Law and Consumer Law

Abstract:     
The ability to make private copies is among the main concerns of consumers of information goods and services, as recent studies conducted among European consumers have demonstrated. What is surprising then is that this general expectation does not seem to rest on legally solid ground. European copyright law, while permitting the Member States of the European Union to provide for a private copying limitation, does not provide legal certainty as to its scope, legal status and enforceability, both in contractual relationships and in situations where private copying is impeded by digital rights management (DRM). Consumer protection law in Europe may on occasion give "teeth" to private copying limitation. However, as recent case law from courts in France and in Belgium has revealed, the application of consumer law to private copying still raises an array of difficult questions, some of which are directly connected to the law of copyright.

This article examines the intersection between copyright law and consumer law relating to private copying in Europe. In doing so, we will query the effectiveness of copyright law and consumer law as legal instruments to protect consumers in their dealings with information suppliers. Our goal is to demonstrate that while copyright law in Europe does offer a measure of comfort to consumers, the legal instruments of European consumer law are potentially more effective in achieving the freedom to make private copies that European consumers generally expect.

Keywords: private copying, unfair contract terms, Digital Rights Management, copyright law, consumer law, information consumer

Accepted Paper Series