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Who pays the piper?

München, 03/23/2017

The World Wide Web has turned copyright infringement into a pastime of the masses. In the following interview, LMU jurists Matthias Leistner and Ansgar Ohly discuss the naïveté of users and the legal position with regard to liability.

Source: highwaystarz /

The automatic assumption that everything on the Internet can be copied and disseminated free of charge has given rise to countless violations of copyright laws. Enormous amounts of copyright-protected material are uploaded, downloaded, stored, read or listened to, without any regard for the rights of the author, performer or producer of the material. An upcoming conference at LMU, organized by Matthias Leistner and Ansgar Ohly, will focus on the question of the liability of Internet intermediaries for these infringements. In this context, intermediaries include not only purveyors of internet access, but also commercial entities such as YouTube or Facebook, which provide useful digital services, while on the other hand acting as enabling platforms for copyright infringements. In 2016, YouTube signed an agreement with the GEMA (the agency responsible for collective management of music copyright in Germany) that effectively clarifies the issue for German users of music files of works composed, performed or published by members of the organization. At the European level, the EU Commission has proposed guidelines for legislation on the fair use of copyright-protected material stored on digital media. In the following interview, Matthias Leistner and Ansgar Ohly explain the difficulties raised by the current legal situation and suggest a model that would equitably balance the rights and interests of internet users, copyright holders and internet service providers.

Users of YouTube download videos with an aggregate duration of several hundred millions of hours every day. Where do the legal uncertainties in relation to this practice currently lie?
Ansgar Ohly: Many of these videos are perfectly legal, but YouTube also provides a major platform for infringements of copyright. For example, it hosts privately copied, copyright-protected sound recordings or films. In this case, the direct infringement is committed by the users who upload the material. But the real issue is to what extent YouTube is legally liable for such violations.

What about the users? Are their rights and responsibilities in this area clearly defined?
Ohly: Not in all cases. What is clearly prohibited is the making available by private individuals of films or music in their original copyright-protected forms. But when the user alters the work in any way – by linking video clips together or using musical tracks as background, for instance – we’re in a legal limbo.

Matthias Leistner: There are several cases pending which certainly raise problems for users. For instance, a downloaded file counts as a legal copy for private use unless it is obvious that the original was illegally uploaded in the first place. A copy of the latest Hollywood blockbuster that turns up on the Internet just as the original reaches cinema screens around the world is clearly a pirated copy. But let us take a folksong in a foreign language. Here, the user cannot be sure whether the work appears on the Internet with the permission of the copyright holder or has been illegally uploaded. In the latter case, downloading it would also be illegal. The settings in the file-sharing software on one’s computer may also unwittingly deceive the user. If he uses file-sharing protocols to exchange files, the software may automatically copy what is on his hard-disk and make that content available to other users, and such a practice is definitely illegal. In the case of the streaming of content, where the user can technically download only an excerpt or a short sequence from the complete work, the legal ins-and-outs have not yet been definitively sorted out in Germany.

How then is the whole issue of copyright handled on websites?
Ohly: In Germany, the principle of the duty of care comes into play here. The owners of a file-sharing platform which enables direct infringements of copyright by users can only be forced to take down the copyright-protected content after having been notified. If one finds a video on YouTube which constitutes a violation of copyright, the owners of the site can be forced to remove the infringing content and to take reasonable care that comparable infringements do not take place in the future. According to current German law, that represents the limit of YouTube’s liability, whereas in the normal case of direct copyright infringement, the copyright holder can sue the infringer for damages resulting from the breach. In the context of intellectual property rights, it is important to distinguish between German and European law. There is as yet no fully integrated corpus of European statutes relating to copyright, but some European legislation does impinge on the area of intellectual property rights.

Leistner: At the European level, it is not yet clear whether a platform like YouTube should be treated as an intermediary – in which case it is subject only to the duty of care principle – or as a direct violator of copyright – because in practice, with respect to music files – the site functions in essentially the same way as a streaming service. The EU Commission’s current proposal for a Digital Single Market Directive tries to solve the problem at the technical level. Its basic approach is to sidestep the fundamental problem, while at the same time mandating that platforms at least install specific filtering systems and actively monitor the status of the content they put online, even in cases where no specific complaints have been lodged. That is a purely pragmatic approach, and from a practical point of view it is understandable. However, it is not a solution that is likely to satisfy legal minds, because it does not deal with the basic issue of whether or not the platforms themselves violate copyright law.

YouTube makes its money from advertising which is shown to users of material that other users have uploaded. What role does this factor play in the whole debate?
Ohly: European law is explicitly concerned only with the activities of intermediary service providers, which are commercial operations but only provide access either to a neutral platform or to the Internet itself. However, YouTube has developed to such an extent in the meantime that it is not just a platform but a music service, which is in competition with other such services like Spotify. The only difference lies in where the money comes from. YouTube gets its money not from users’ monthly subscriptions but from its advertisers. This is also the primary reason why many would argue that it does not make sense that YouTube should not be liable for copyright infringements and should not have to pay licensing fees to the GEMA, while platforms like Spotify are legally obliged to do so.


Page 2: What kinds of solutions have been proposed for the future of copyright?