p2p file-sharing and collective management séverine dusollier university of namur crid
TRANSCRIPT
P2P file-sharing and collective management
Séverine DusollierUniversity 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
Exce
ption
or f
air u
se
Com
puls
ory
licen
se
Volu
ntar
y co
llecti
ve
man
agem
ent
Exte
nded
col
lecti
ve
man
agem
ent
Indi
vidu
al
man
agem
ent
Exercice of exclusive right Limitation of exclusive right
Blanket licensing (or global license)
Man
dato
ry c
olle
ctive
m
anag
emen
t
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 subscriptionP2P License:YesNo
Different modelsCompulsory 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