the legality of peer-to-peer under eu law ipg meeting berlin, november 4, 2005 thibault verbiest...
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The Legality of Peer-to-peer under EU Law
IPG MeetingBerlin, November 4, 2005
Thibault VerbiestULYS Partner
University of Paris I (Sorbonne) www.ulys.net
Legality of P2P under EU Law
P2P Case study: Music online EU Initiative
Copyright protection Directive 2001 on the harmonisation of certain aspects of
copyright and related rights in the information society
Internet licensing Recommandation 2005 on collective cross-border
management of copyright and related rights for legitimate online music services
P2P
What’s P2P?From user to user implies that either side can initiate a session and has
equal responsibility confusing term, because it has always been contrasted
to a central system that initiates and controls everything In practice, two users on a peer-to-peer system often
require data from a third computerThe two major categories of peer-to-peer systems are
file sharing and CPU sharing
P2P
P2P success story?Napster popularized P2P in 1999Called a "peer-to-peer network," but its use of a
central server to store the public directory made it both centralized and peer-to-peer
P2P second generation: KazaaFrom Kazaa to large files protocols: BitTorrent,
eDonkey
P2P
Case study: Music online
Music onlineGlobal music industry sales declined by some 22% over
five years to 2003, a reduction of over US$ 6 billion870 million unauthorised music files on the internet (all
services), January 2005 8.6 million concurrent users on P2P networks offering
unauthorised music files as of January 2005 (6.2 million in January 2004)
36 million of the 40 million people downloading (9/10) in Europe are still not paying for music they download
The collapse of music industry ?
The collapse of music industry?
The collapse of music industry?
The Empire strikes back!
Industry responseRecord companies have digitised and licensed
over a million songs in 2004Number of online services where consumers
can buy music has increased four-fold to more than 230 worldwide –and over 150 of those are in Europe
In 2004 downloaded tracks rose more than ten-fold over 200 million in the US, UK and Germany combined
The Empire strikes back!
The Empire strikes back!
The Empire strikes back!
EU Initiative
Copyright protection
Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the Information Society Gradually implemented in all the countries of the
European Union!
Copyright protection
RightsReproduction rightRight of communication to the public of works
and right of making available to the public other subject-matter
Distribution right
Copyright protection
ExceptionsTemporary acts of reproductionLibraries, educational establishments, museumsHospitals, prisonsFor teaching or scientific researchQuotations for purposes such as criticism or reviewUse for the purposes of public security….
Copyright protection
Back door to P2P: exception for private use art. 5, §2 (b) of the DirectiveReproductionmade by a natural person for private useand for ends that are neither directly nor
indirectly commercial, on condition that the rightholders receive fair
compensation
Copyright protection
Exception for private use Implemented in many national legislations
France, Belgium, Germany,…Exception invoked by many P2P users dowloading
and/or uploading unauthorised music filesNo clear case lawMost recent example in France
TGI de Meaux 21 April 2005 P2P users sanctioned for having uploaded illegal files but
released for the dowloading of illegal files on the exception for private use
Copyright protection
Action against ISP & P2P server administrators Article 8, § 3 of the DirectiveMember States shall ensure that rightholders
are in a position to apply for an injonction against intermediaries whose services are used by a third party to infringe a copyright or related right
Copyright protection
Landmark case in Belgium (2004)SABAM v. TISCALI Action grounded on Article 8, §3 of the
DirectiveIllegal music file-sharing through P2PTISCALI sanctioned as ISP whose services are
used by a third party to infringe music copyright
Internet Licensing
Improving cross-border licensing for music servicesAbsence of EU-wide copyright licences for
online content services makes it difficult for legitimate online music
services to take off Increase the revenue gap between the US and the
EU• US online music market is expected to grow to €1.27
billion by 2008 >< € 559 million in the EU by 2008
Internet Licensing
July 2005 Study on a community initiative on the cross-border collective management of copyright
October 2005 Commission recommandation on collective cross-border management of copyright and related rights for legitimate online music services
Internet Licensing
Online music service includes any music service provided on the Internet such assimulcasting webcastingstreamingdowloading online « on-demand » service or provided to mobile phones
Internet Licensing
Services provided by collective rights managers (CRM) includeThe grant of licences to commercial usersThe auditing, monitoring of rights by ensuring
payment and terms of licensing; and pursuing infringers (enforcement)
The collection of royaltiesThe distribution of royalties to rights-holders
Current situation in Europe
• Services provided by collective rights managers (CRM) include– The grant of licences to commercial users;– The auditing, monitoring of rights by ensuring
payment and terms of licensing; and pursuing infringers (enforcement);
– The collection of royalties;– The distribution of royalties to rights-holders
Top ten CRMs
• Services provided by collective rights managers (CRM) include– The grant of licences to commercial users;– The auditing, monitoring of rights by ensuring
payment and terms of licensing; and pursuing infringers (enforcement);
– The collection of royalties;– The distribution of royalties to rights-holders
Market share of CRMs
• Services provided by collective rights managers (CRM) include– The grant of licences to commercial users;– The auditing, monitoring of rights by ensuring
payment and terms of licensing; and pursuing infringers (enforcement);
– The collection of royalties;– The distribution of royalties to rights-holders
Issues and Answer
Commercial online services require a licence for more than one territory which gives legal certainty and insurance against infringements suits for all territories (multi-territorial licence)
This demand for a multi-territorial licence cannot be satisfied within the currrent structure of traditional reciprocal arrangements
Right holders should benefit from digital transmission technologies by having a choice as to which collecting society to join and to give mandate to for the multi-territorial online management of their rights
• Give right-holders the choice to authorise collecting societies of their choice to online rights for the entire EU!!!
Objectives of the EU initiative
Legality of P2P under EU Law
ConclusionEU Initiative
Harmonization of copyright protection• exception for private use: back door for P2P users?
• Injonction against intermediaries: potential actions against ISP and P2P server administrators?
Encouragement to multi-territorial online licensing and multi-territorial CRMs
• Facilitate the growth of legitimate online services is the most efficient answer to P2P
Legality of P2P under EU Law