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

lowing consumers to make private copies where copying constitutes an essential functional characteristic of digital media (e.g., time and format shifting, porting, and archiving).However, as recent decisions from courts in France and Belgium demonstrate, consumer law as applied to private copying also suffers from a lack of legal certainty and other deficiencies, stemming in part from the ambiguity in European copyright law regarding private copying.5 This Article examines the intersection of copyright law and consumer law relating to private copying in Europe and queries their effectiveness as legal instruments to protect consumers in dealings with information suppliers.The focus will be on traditional consumers, defined as private users of information goods and services for non-commercial purposes.Commercial or institutional users of copyright-protected works, such as publishers, broadcasters, libraries, and universities, therefore remain beyond the scope of this Article.The Article will also not address "prosumers," consumers doubling as producers.Although national statutes and case law are discussed throughout the Article, the primary reference will be the existing body of European directives that have partly harmonized the laws of copyright and consumer protection of the Member States.Part II briefly looks at the history and rationales of private copying limitations in Europe, then examines the legal nature and enforceability of private copying exemptions in their diverse manifestations and concludes with a general assessment.Thereafter, Part III analyzes European consumer law following roughly the same structure, first describing the various, sometimes conflicting goals and approaches of consumer protection law in Europe, then examining relevant legal tools, and finally querying how and to what extent these tools might serve to protect consumers' freedom to make private copies.Ultimately, we 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.synonymous term "exception," which is often used in European legislation and scholarship, is avoided here because of its pejorative connotation.In the opinion of the authors of this article, limitations in copyright law are not exceptional.