Abstract
Internet platform providers (IPPs) have the potential of reaching every online user of copyrighted works and of enhancing the licensing efficiency of copyrighted works. This chapter explores legal mechanisms to transform this potential into reality: an obligation on copyright holders to issue license to active IPPs, an obligation on passive IPPs to acquire license from collective management organizations (CMOs) and the oversight over IPPs. It then discusses the desirability of cooperation among IPPs and CMOs. It concludes by venturing to advocate an international agreement that would facilitate global licensing of copyrighted works.
Kung-Chung Liu is Director, Applied Research Center for Intellectual Assets and the Law in Asia, Singapore Management University/Professor, Renmin University.
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Notes
- 1.
S. Perlmutter (2014), 50.
- 2.
For more discussion see the chapter by S. Nérisson.
- 3.
According to Wikiwand, Universal Music Group, Sony BMG, EMI Group (now a part of Universal Music Group (recording) and Sony/ATV Music Publishing (publisher)) and Warner Music Group are collectively known as the “Big Four” labels, available at: https://www.wikiwand.com/en/Music_industry.
- 4.
To download a single, one needs to pay a royalty ranging between NT$ 19 and 25 (1 US$ equals 33 NT$), available at: www.indievox.com/.
- 5.
I.L. Pitt (2015), vii.
- 6.
US Copyright Office (2015), 187.
- 7.
One notorious extreme is the Italian CMO, Societá Italiana degli Autoro ed Editorie (SIAE) which reported losses of US$ 53 million in 1999 even though collections were up. SIAE later again made a US$ 52.3 million loss by investing in Lehman Brothers when the latter went broke in 2008; see W. Patry (2011), 181–182.
- 8.
E.g. the Copyright Clearance Center in the US earns a 15 % commission and 15 % administrative fee on revenue it collects, see: en.wikipedia.org/wiki/Copyright_Clearance_Center.
- 9.
Borrowing from the subtitle of the book “Intellectual Property – omnipresent, distracting, irrelevant” by W. Cornish (2004).
- 10.
I. Pitt (2015), 162.
- 11.
P. Goldstein (2015), 153–154.
- 12.
On 19 December 2003, in RIAA v. Verizon, 351 F. 3d 1229 (D.C. Circuit 2003) the D.C. Appeals Court ruled that the DMCA subpoena provision did not authorize RIAA’s “driftnet fishing” tactics, overturned the lower court ruling, and found that the DMCA subpoenas were available only where the allegedly infringing material was stored on the ISPs’ own computers, not for situations involving P2P file-sharing where the material was stored on a subscriber’s individual computer.
- 13.
Electronic Frontier Foundation (2008), 3.
- 14.
Electronic Frontier Foundation (2008), 5.
- 15.
Electronic Frontier Foundation (2008), 1.
- 16.
B. Slattery (2008).
- 17.
Dallas Buyers Club is a 2013 American biographical drama film, co-written by Craig Borten and Melisa Wallack, directed by Jean-Marc Vallée.
- 18.
Speculative invoicing is a practice which commonly involves sending intimidating letters of demand to alleged infringers seeking significant sums for an alleged infringement by threatening court action if the sums are not paid. To prevent speculative invoicing, DBCL was asked to submit to Justice Perram a draft of any letter it proposes to send to account holders associated with the IP addresses which have been identified. DBCL provided copies of the proposed letters, which included four demands: payment for the cost of purchasing a copy of the film (payment cost); payment of a license fee by each uploader (license fee); punitive damages depending on any other copyrighted works that person had downloaded (additional damages); and cost of DBCL’s expenditure in obtaining the details of each infringer (expenditure fee). DBCL’s application that the stay be lifted was dismissed because Justice Perram found that DBCL’s demands beyond the payment of cost and expenditure fee (permissible heads of damage) were not acceptable. For details see Dallas Buyers Club LLC v. iiNet Limited [2015] FCA 317 (April 7, 2015) and 838 (August 14, 2015). K.A. Hayne / A. Fehrenbach (2015).
- 19.
See Dallas Buyers Club case: Uphill task to sue users, say lawyers, available at: www.straitstimes.com/singapore/courts-crime/dallas-buyers-club-case-uphill-task-to-sue-users-say-lawyers.
- 20.
In the US, statutory damages, written into the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, are between US$ 750 and US$ 30,000 per work or US$ 750 and US$ 150,000 per work if willful. In Singapore statutory damages can go up to S$ 10,000 per title per person (Section 119 (2)(d) of the Copyright Act). In the 2016 “White Paper on Remixes, First Sale, and Statutory Damages,” the US Department of Commerce’s Internet Policy Task Force sets forth its conclusions on the appropriate calibration of statutory damages in the contexts of individual file sharers and secondary liability for large-scale infringement. The White Paper recommends amending the Copyright Act to incorporate a list of factors for courts and juries to consider when determining the amount of statutory damages. In addition, it advises changes to remove a bar to eligibility for the Act’s “innocent infringer” provision, and to lessen the risk of excessively high statutory damages in the context of secondary liability for online service providers. See ntia.doc.gov/press-release/2016/commerce-recommends-amendments-copyright-act.
- 21.
J. Sterling, (2010), 295.
- 22.
L. Hilman (2013). Such fair trade copyright would encourage users to donate to recording artists on digital platforms and distribute the donations to artists.
- 23.
Kembrew McLeod and Peter DiCola advocate the idea of allowing copyright owners a choice between a compulsory license and a reverse liability rule. Under the reverse liability rule, copyright owners can block the use of their works by paying a fee to the government fund that would in return financier some other works. See K. McLeod / P. DiCola (2011), 265. The idea was also picked up by Dan Burk in the realm of patent law, according to which a patentee who wishes to enforce his patent rights disregarding FRAND terms has a right to injunction only if he pays the costs of the competitor who needs to adopt an alternative technology. See D. Burk (2013), 7.
- 24.
Electronic Frontier Foundation (2008), 13.
- 25.
L. Hilman (2013), 191, 194 et seq.
- 26.
According to L. Hilman (2013), 195, “Complexity might have been the main barrier for implementation. Too many participants, interests and agendas need to be settled in order to make such systems feasible.”
- 27.
However, Goldstein is of the opinion that transaction costs are not immutable and can be reduced through institutional innovation to such a level that non-voluntary copyright licensing could not be justified, see P. Goldstein (2015), 153.
- 28.
K. McLeod / P. DiCola (2011), 266.
- 29.
For similar opinions see the chapters by R. Mittal and by M.R.F. Senftleben.
- 30.
This follows the spirit of Article 14(2) of the German Basic Law which provides: “Property entails obligations. Its use shall also serve the public good.”
- 31.
For similar opinion see W. Patry (2011), 262: “Copyright owners should also support the good guys by providing reasonably priced, convenient authorized goods. If they don’t, no copyright law can help them.”
- 32.
For similar opinions and more discussion see the chapters by H. Sun, W.L. Ng-Loy and C. Geiger.
- 33.
K. McLeod / P. DiCola (2011), 262.
- 34.
D. Gervais (2010), 17.
- 35.
In many countries, Germany (Article 6 of the Act on the Management of Copyrights and Related Rights [Gesetz über die Wahrnehmung von Urheberrechten und verwandten Schutzrechten]) and Taiwan (Article 32 of the Copyright Collective Management Organization Act) for example, CMOs may not refuse to grant license to willing users.
- 36.
Section 35(4) of the Danish Copyright Act; see T. Foged (2015), 22. Specific extended collective license pursuant to Article 50(2) is different from general extended collective license pursuant to Article 50(1).
- 37.
Section 35(5) of the Danish Copyright Act; see T. Foged (2015), 23.
- 38.
Section 35(7) of the Danish Copyright Act; see T. Foged (2015), 19.
- 39.
Record labels part owner of Spotify, available at: www.swedishwire.com/jobs/680-record-labels-part-owner-of-spotify. Before the Swedish Spotify was launched a number of record companies bought 18 % of the company’s stocks: Sony BMG (5.8 %), Universal Music (4.8 %), Warner Music (3.8 %) and EMI (1.9 %).
- 40.
I. Pitt asks similar question in the context of music works. See I. Pitt (2015), 263.
- 41.
According to the theory of the so-called “Skripturakt” adopted by the German Court of Appeal of Nuremberg, the person who generates the data gets the right to the data. See T. Hoeren (2014), 753. However, such a rule of thumb does not seem to fit the scenario of IPPs and CMOs.
- 42.
I. Pitt (2015), viii.
- 43.
D. Gervais (2010), 20. Noteworthy is the Linked Content Coalition (LCC, www.linkedcontentcoalition.org): a not-for-profit global consortium of standards bodies and registries. LCC members are organizations who create and manage data standards associated with content of one or more types, particularly for identifiers, metadata and messaging. The purpose of the LCC is to facilitate and expand the legitimate use of content in the digital network through the effective use of interoperable identifiers and metadata.
- 44.
One such example is the so-called Santiago Agreement by five big CMOs, namely BMI (the US), BUMA (the Netherlands), GEMA (Germany), PRS (the UK) and SACEM (France) which was later joined by all other CMOs within the European Economic Area—except for the Portuguese SPA and Swiss SUISA—and legitimized by the General Court of the EU (GCEU). According to this Agreement, each participating CMO could be the only one entitled to grant a non-exclusive license to users established in its territory, which would be valid for all EU territories and would cover the whole music repertoires of all participating CMOs. The EU Commission ruled that the Agreement was a concerted practice contrary to EU competition rules, which was rejected by the GCEU on appeal. GCEU concluded that it had not been proved that CMOs were engaging in an anticompetitive behavior, for more see T. Woods (2010), 115–117 and the chapter by R. Xalabarder.
- 45.
According to: www.gsma.com/aboutus, the GSMA represents the interests of mobile operators worldwide, uniting nearly 800 operators with more than 250 companies in the broader mobile ecosystem, including handset and device makers, software companies, equipment providers and internet companies, as well as organizations in adjacent industry sectors.
- 46.
W. Patry (2011), 182.
- 47.
W. Patry (2011), 188.
- 48.
W. Patry (2011), 252.
- 49.
Borrowing from the chapter title from Kathy Bowrey, see K. Bowrey (2005), 54.
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Liu, KC. (2017). Individual Licensing Models and the Role of Internet Platform Providers. In: Liu, KC., Hilty, R. (eds) Remuneration of Copyright Owners. MPI Studies on Intellectual Property and Competition Law, vol 27. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-53809-8_13
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