Dansk Selskab for Ophavsret, 30 April 2018 THE EUROPEAN VALUE GAP DEBATE Prof. Dr. Martin Senftleben

Towards a Modern, More European © interdependence of diverse creative content and innovative online services ‘Both — creative content and online services — are important for growth and jobs and the success of the internet economy.’ (p. 9) but: risk of a value gap ‘There is, however, growing concern about whether the current EU copyright rules make sure that the value generated by some of the new forms of online content distribution is fairly shared…’ (p. 9)

Focus on content platforms

Towards a Modern, More European © safe harbour for hosting as a backdoor to obtain website contents? ‘This has prompted a growing debate on the scope of this exemption and its application to the fast-evolving roles and activities of new players, and on whether these go beyond simple hosting or mere conduit of content.’ (p. 10) same point in ‘Online Platforms Opportunities and Challenges’ (May 2016), p. 8

Purpose of the Study changes to current EU legislation ‘enabling the effective enforcement of copyright and related rights in the digital environment, particularly on platforms which disseminate protected content.’ (p. 2) strategy: leaving general rules of the E-Commerce Directive untouched instead: neutralization of the safe harbour for hosting in copyright legislation

Contents Prologue Main act After play Current compromise proposal (Bulgarian Council Presidency) Licensing Filtering After play

PROLOGUE

Communication to the public intervention = offering users access to the work new public = fairly large number of people profit-making nature relevant to the assessment, but not decisive

CJEU, 8 September 2016, case C-160/15, GS Media

CJEU, 8 September 2016, case C-160/15, GS Media new: criterion of subjective knowledge ‘…where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.’ (para. 49)

CJEU, 26 April 2017, case C‑527/15, Brein/Filmspeler criterion of subjective knowledge extended to the preparatory phase ‘…that the sale of the ‘filmspeler’ multimedia player was made in full knowledge of the fact that the add-ons containing hyperlinks pre-installed on that player gave access to works published illegally on the internet.’ (para. 50) evolution of a new doctrine? no longer specific rules of ‘contributory liability’?

Collapsing primary and secondary liability

CJEU, 14 June 2017, case C‑610/15, Brein/Ziggo problem: illegal material uploaded by users ‘…that the works thus made available to the users of the online sharing platform TPB have been placed online on that platform not by the platform operators but by its users.’ (para. 36) knowledge of illegal content sufficient to establish communication to the public? ‘…that those operators, by making available and managing an online sharing platform such as that at issue in the main proceedings, intervene…’

CJEU, 14 June 2017, case C‑610/15, Brein/Ziggo ‘…with full knowledge of the consequences of their conduct, to provide access to protected works, by indexing on that platform torrent files which allow users of the platform to locate those works and to share them within the context of a peer-to-peer network.’ (para. 36) requirement of new public and profit motive fulfilled as well provision of file-sharing infrastructure = communication to the public

Concept of communication to the public in the EU no longer limited to carrying out of the act of communication as such instead extension to the act of providing means that allow others to access illegal content

MAIN ACT

Art. 13(1) Proposed DSM Directive Bulgarian Council Presidency: compromise proposal of April 23, 2018 ‘Member States shall provide that an online content sharing service provider performs an act of communication to the public or an act of making available to the public when it intervenes in full knowledge of the consequences of its action to gives the public access to copyright protected works or other protected subject matter uploaded by its users.’

abandonment of knowledge criterion Remarkable step abandonment of knowledge criterion independent, separate exclusive right

Bulgarian compromise proposal ‘An online content sharing service provider shall obtain an authorisation from the rightholders referred to in Article 3(1) and (2) of Directive 2001/29/EC in order to communicate or make available to the public works or other subject matter. Where no such authorisation has been obtained, the service provider shall prevent the availability on its service of those works and other subject matter, including through the application of measures referred to in paragraph 4.’

= no strict liability ...two options instead: licensing filtering

LICENSING

Bulgarian compromise proposal ‘Member States shall provide that when an authorisation has been obtained, including via a licensing agreement, by an online content sharing service provider, this authorisation shall also cover acts of uploading by users of the service falling within Article 3 of Directive 2001/29/EC when they are not acting on a commercial basis.’ no authorization for reproduction (Article 2 InfoSoc Directive) required?

Licenses for Europe enormous rights clearance task in light of the content diversity of online platforms umbrella licensing agreements with collecting societies available? indemnification against claims of non-members offered? collecting societies flexible enough to support new business models? licensing models applied in the case of orphan works an encouraging example?

cross-border licenses for entire EU territory Elephant in the room cross-border licenses for entire EU territory

Loss of user autonomy and freedom of expression? from open, participative platforms of the web 2.0 to content platforms resembling TV channels

FILTERING

Art. 13(4)(a) Proposed DSM Directive Bulgarian compromise proposal ‘…made best efforts to prevent the availability of specific unauthorised works or other subject matter by implementing effective and proportionate measures […] to prevent the availability on its services of the specific unauthorised works or other subject matter identified by rightholders and for which the rightholders have provided the service with information for the application of these measures;…’

Effective and proportionate measures

CJEU, 24 November 2011, case C-70/10, Scarlet/Sabam copyright owner: erosion of copyright? platform provider: too heavy a burden? internet users: sufficient safeguards? freedom of expression/ privacy freedom of conducting a business copyright protection

Much reliance on industry cooperation who represents the public interest?

Art. 13(7) Proposed DSM Directive Bulgarian compromise proposal ‘Member States shall ensure that the measures referred to in paragraph 4 are implemented by the online content sharing service provider without prejudice to the possibility for their users to benefit from exceptions or limitations to copyright.’ complaint and redress mechanism for users cooperation with rightholders to process complaints within ‘reasonable’ time period rightholders must justify content blocking

Risk of market concentration big players already have quite sophisticated filtering systems in place filter obligation = entrance barrier for (small) newcomers need to develop and refine own systems simple systems lead to overblocking and competitive disadvantage additional adminstrative burdens (complaint mechanisms, reporting obligations)

Bulgarian compromise proposal no disproportinate obligations intended ‘The measures should be proportionate in order to avoid imposing disproportionately complicated or costly obligations on certain online content sharing service providers, taking into account notably their small size.’ (Recital 38e Proposed DSM Directive) no filter obligation without data from rightholders (Recital 38ca) amount and type of uploaded works to be taken into account (Recital 38e)

AFTER PLAY

good luck with the national implementation Harmonized framework? good luck with the national implementation

ALL DIMENSIONS COVERED?

Individual creator vs. creative industry German Copyright Contract Act 2002 right to fair remuneration ex ante and ex post ‘fair’ = customary and honest remuneration in the sector concerned establishment of common remuneration rules in negotiations between industry and creators Dutch Copyright Contract Act 2015

THE END. THANK YOU!