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