Who pays the piper?
Page 2: What kinds of solutions have been proposed for the future of copyright?
Leistner: One possibility is a two-level model. The first level would apply to minimal use – for example, the publication of short segments, or poor-quality copies, of a piece of music or a film on a social platform – for which a collective remuneration would be paid to copyright licensing agencies such as the GEMA and then distributed to copyright holders. This corresponds to the model adopted for copying machines, which has proven to be a very successful compromise since its introduction in 1965. On the one hand, users are free to make copies and do not have to apply for an individual license – which would in any case be practically impossible. Instead, a surcharge is levied on the purchase of so-called blank media and copying devices – DVDs, printers, copiers, fax machines and smartphones – and these fees are collected by licensing agencies such as the GEMA or VG-Wort and distributed to copyright holders. With reference to intermediaries, this approach – in my view – would have to be combined with a clear declaration, which defines as direct violators of copyright certain platforms that structure copyright-protected material as a service for their own users. These providers would then have to obtain a license, insofar as they provide complete compositions of high quality – and are therefore in competition with traditional modes of exploitation of intellectual property rights.
Does that then imply that the users, who in the present state of things are the guilty parties actually infringing copyright law, would no longer be held responsible for the violations?
Ohly: The problem here is one of practicability. It is not easy to discover the identity of an infringing user. It is of course possible, thanks to the fact that providers may be legally obliged to identify the individual culprit. In Germany this is particularly effectively done by means of the so-called notice of infringement to individual users on the basis of user data obtained from the access providers. However, copyright violation has become a mass phenomenon, and very many individuals contribute to it. But to return to your question – if a licensing model like the one we have just outlined were introduced, it would effectively legalize what users now do. It would mean that uploading of copyright-protected material would be legal, because the relevant licensing fees are payable by the owners of the platforms.
YouTube has now been online for 12 years. Why have the legal problems connected with its business model not been sorted out up to now?
Ohly: Since its beginnings, copyright law has evolved in response to technical innovations and the economic developments they have made possible. Copyright law originated following the invention of printing. The advent of sound recording by means of the phonograph, the tape recorder and the cassette recorder all posed new challenges in their day. The pace of technological development since then has been unbelievably fast, and the associated value chains have also undergone rapid change. Peer-to-peer file-sharing, which enables films and music files to be exchanged via the Internet, is one such novelty. It began a decade ago and its management posed a huge legal challenge. Meanwhile, the legal framework that regulates the practice is clear, but the practice of file-sharing itself is in retreat, since subscription services like Spotify have appeared on the scene. The tremendous pace of development, coupled with the complications of the legislative process – to which all sorts of interest groups make often very emphatic contributions – makes the whole field extremely complex. In addition, the issue confronts us once again – and in a more acute form than ever – with an age-old legal problem: How to reconcile the conflicting demands of individual justice and legal certainty. An equitable solution will require a degree of flexibility, while at the same time ensuring that the underlying legal principles and their implications are broadly predictable.
Ansgar Ohly holds the Chair of Civil Law, Intellectual Property Law and Competition Law at LMU.
Matthias Leistner holds the Chair of Civil Law and Intellectual Property Law with a focus on Information Service and Information Technology Law (GRUR Chair) at LMU.
On March 23rd and 24th, LMU will host a conference on Online Platforms and Intermediaries in Copyright Law organized by Professors Ansgar Ohly and Professor Matthias Leistner. Among the speakers will be prominent academics and judges, such as Sir Richard Arnold (High Court of England and Wales), Professor Andreas Paulus (German Federal Constitutional Court) and Professor Joachim Bornkamm (formerly Federal Court of Justice), and representatives of the EU Commission and the European Court of Justice.