P2P file-sharing and collective management Séverine Dusollier University of Namur CRID

Legal treatment of P2P file-sharing Prosecution of P2P software producers (Kazaa, Napster, Grokster), Torrentfiles providers (PirateBay) Injunction against ISP (filtering ?) Users of P2P – Upload is illegal – Download uncertain but often considered as illegal – Three-strikes approaches (France-Hadopi and in many countries)

Reasons for authorizing P2P Three-strikes approach is very unpopular Make copyright owners benefit of exploitation through P2P and restore revenue stream Make the ISP pay (as they benefit from P2P) The users might be willing to pay

The many shades of authorizing P2P Exception or fair useCompulsory licenseVoluntary collective management Extended collective management Individual management Exercice of exclusive right Limitation of exclusive right Blanket licensing (or global license) Mandatory collective management

Existing propositions Legislative bills – France in 2005 – Belgium in 2010 – Others ?

Existing propositions From copyright scholars – US & Canada: J. Litman, N. Netanel, D. Gervais, W. Fisher, R. Ku, … – Europe: Ph. Aigrain, A. Peukert Different models – compulsory license to madatory collective management – Compulsory for rightholders, with opt-out, with opt-in – levy on broadband Internet access and/or digital devices or media – Managed by governement (© Office) or CMO

Existing propositions From performers and consumers – Alliance Public Artistes (France) Mandatory collective management, voluntary for users, remuneration on broadband internet access – Compartilhamento legal ! (Brazil) Compulsory licensing with levy on broadband Internet access From collective management – SABAM (Belgium) Remuneration from broadband Internet access – SACD (Belgium) Feasibility study in process

File sharing Internet subscription + license remuneration Internet service providers Performers Collective management organisation Authors Producers P2P license remuneration ISP Internet subscription P2P License:  Yes  No

Different models Compulsory licensing (EU private copy) Levy Paid by ISP, but passed on all Internet subscribers Rough justice License between CMO and users Remuneration Paid by users, voluntarily ISP is an intermediary, third party to the license License between CMO and ISPs Remuneration Paid by ISP (passed on users on a voluntary basis) ISP stipulates to the benefit of users

Basic requirements Protection and remuneration of copyright owners Global authorization for users – All types of works ? Or only music ? – All rights holders: copyright, producers, performers – Domestic and foreign works Economic consideration – Level of remuneration – Safeguarding legal offers

Legal Hurdles Limitation of exclusive right authorized by Berne Convention ? – Either explicitly (see 11bis or 13 Berne for compulsory licensing) – Or by three-step test Scrutiny to be applied to: – Compulsory licensing – Mandatory collective management ? (= limitation?) – Extended collective management ? (= limitation?)

Legal Hurdles Compliance with the three-step test – Certain special cases – Do not conflict with normal exploitation of works – Do not unreasonably prejudice the legitimate interests of the author Special treatment for mandatory or extended collective management ?

Legal Hurdles Solution including prohibited formalities ? – 5(2) Berne: The enjoyment and the exercise of these rights shall not be subject to any formality Applicable to opt-out mechanisms ? – Opting out of compulsory licenses ? – Opting out of extended collective management ?

Practical Hurdles Implication of Internet Service Providers – Economically justifiable Benefit from P2P file-sharing – Legally difficult Safe harbour principles in US and EU

Practical Hurdles Media chronology – Safeguarding release in theaters, DVD sales, VOD, … – Filtering ? Role of ISP again…

Practical Hurdles Representativity of collective management societies – Agreement of all rightholders concerned Producers of music and films ? Music, film, books, TV shows, … – Reciprocal agreements between collective management societies A national solution would include international repertoire Particular issue of films…

Practical Hurdles Distribution of collected sums – Fairness, works actually shared – Tracking and monitoring ? Efficiency of opt-out mechanisms –.drm files ? (involvement of P2P software developers)

Conclusion