Conference report: Online platforms and intermediaries in copyright law

The speakers of the Munich conference

The conference on “Online Platforms and Intermediaries in Copyright Law” hosted by Ansgar Ohly and Matthias Leistner at the LMU Munich on 23 and 24 March 2017 shed light on several issues and challenges concerning current trends and developments in copyright law and intermediaries’ liability. 

The IPKat is delighted to host the following report by LMU Munich doctoral student Laura Jones.

Here's what Laura writes:

"Distinguished speakers from all over the world presented the framework of intermediaries’ liability and the concepts of primary and secondary liability before turning towards the different national approaches as well as (legislative and doctrinal) reform proposals.

Joost Poort (University of Amsterdam) began with an economic perspective on the matters at hand and argued that copyright should be limited at optimally resolving public good market failure. Andreas Heinemann (University of Zurich) pointed out that competition law not only restricted the exercise of intellectual property rights. It could also protect right owners from IP clauses used by intermediaries which have a dominant position in the market. Fundamental rights provide an essential framework for copyright law, as Andreas Paulus (Federal Constitutional Court) explained. In the absence of a European Copyright Code the national legislators should be the ones to take the basic policy decisions. While Jonathan Griffiths (Queen Mary University, London), was prepared to accept the importance of fundamental rights for copyright law, he pointed out that lifting copyright law disputes to the level of fundamental rights was not without problems. Martin Husovec (Tilburg University) stressed with regard to blocking injunctions that the balancing of rights should not predict the outcome of a case but rather constitute a range within which the legislator should decide on which measures to impose on access providers.

When it comes to the possible liability regimes, Maciej Szpunar (Court of Justice of the European Union) gave an insight into the current EU law framework concerning safe harbours, fully harmonised property rights, their enforcement against intermediaries and the CJEU jurisprudence. Alain Strowel (UC Louvain and Saint-Louis University Brussels) indicated that the lines between primary and secondary liability had become more and more blurred, especially with respect to the requirement of knowledge in cases such as GS Media. A similar development can be observed in the US. As Peter Yu (Texas A&M University School of Law) showed, the distinction between primary liability and between the different forms of accessory liability became increasingly difficult also from the perspective of US law. Michael Grünberger (University of Bayreuth) pointed out that the extension of primary liability in EU law resulted in notions of reasonableness becoming a part of the infringement test. This was not necessarily unwelcome, as there was a need for access rules in an environment-sensitive copyright law. The recent GS Media judgment has resulted in a very complex legal landscape and has thrown up more questions than it has answered, as Joao Quintais (University of Amsterdam) argued.

Karina Grisse (CBH Rechtsanwälte, Cologne) focused on the third enforcement option that is detached from any liability: injunctions against intermediaries, in particular website blocking orders against access providers. She regarded such orders as the last resort and favoured the principle of subsidiarity, which the German Federal Supreme Court set up for blocking orders. This is where national differences became very clear. Richard Arnold (High Court of England and Wales) emphasised that the insertion of a requirement of subsidiarity within Article 8 (3) InfoSoc Directive would neither be practical, nor in compliance with the fundamental idea of the intermediary being the lowest cost avoider. He outlined various other safeguards that can guarantee the proportionality of the order such as the requirement to list the exact technical measures or the insertion of sunset clauses and presented the recent order concerning illegal streaming as an example of a fine-tuned remedy. Joachim Bornkamm (University of Freiburg, formerly German Federal Supreme Court) gave an account of the German concept of “Störerhaftung” (liability of the interferer) as an implementation of Article 8 (3) InfoSocDirective. It seeks to combine effectiveness with reasonableness. Hence liability is restricted to injunctive relief and conditional on the violation of a duty of care. Other than in Germany, a concept of secondary liability does not exist in France, where the breach of duties of care leads to primary liability, as Agnès Lucas-Schloetter (LMU Munich) pointed out. Therefore the discussions in France concentrate on the applicability of the safe harbour rules under which, surprisingly, search engine operators were treated as hosts. In addition Article L. 336-2 IPC allows for injunctions against a broad spectrum of intermediaries. Tatsuhiro Ueno (Waseda University, Tokyo) then explained that Japanese law did not permit the ordering of injunctions against secondary infringers. In consequence, the scope of primary liability was broadened. However, it still does not allow for injunctions against access providers.

Several speakers called for legislative reform. Agata Gerba (EU Commission) therefore elaborated on the Commission’s goals pursued with the Proposal for a Directive on copyright in the Digital Single Market. Its objective was to ensure that agreements between platform operators and right owners were followed. A broader reform of the InfoSoc Directive and the E-Commerce Directive did not seem a realistic political option at the moment.  Cyril van der Net (Ministry of Security and Justice, Netherlands) criticised the proposed introduction of a new neighbouring right for press publishers in the proposal as unnecessary. He asked the audience to vote either in favour or against, and the vast majority came down in favour of either abolishing Article 11 or replacing it by a presumption of right in favour of press publishers.

But what are the alternative solutions? Ole-Andreas Rognstad (University of Oslo) suggested a one-step approach of an exclusive right to a reasonable exploitation of the work with two supplements: general principles (as the fundamental rights) and a catalogue of non-exhaustive examples of delineation of rights including exceptions. Instead of asking what communication to the public is or is not, one should question whether the solution is reasonable. Last but not least Gerald Spindler (University of Göttingen) discussed possible incentives for monitoring and stressed the need for a Good Samaritan privilege. Exclusive rights should moreover be combined with levies for platforms. New technologies could further be used for an automatic licensing of works.

The vivid discussions showed that there are various opinions when it comes to a topic of such high complexity. As Ansgar Ohly and Matthias Leistner pointed out in their closing remarks, the Proposal for a Directive on copyright in the Single Digital Market is a minimalist solution and leaves the need for further clarifications on the scope of the exclusive rights as well as the need for further harmonisation of secondary liability.

The presentations are available at http://www.zr11.jura.uni-muenchen.de/aktuelles/index.html."

Thanks so much Laura for this detailed report!