Proposals from Berlin and Paris - Intermediary Liability in European Copyright Law
| Author | Jonathan Griffiths |
| Pages | 70-75 |
2016
Jonathan Griffiths
70
2
Proposals from Berlin and
Paris – Intermediary Liability in
European Copyright Law
by Jonathan Griffiths*
© 2016 Jonathan Griffit hs
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Jonat han Griffiths, Prop osals from Berlin and Paris – Intermediary Liabilit y in European Copyright
Law, 7 (2016) JIPITEC 70 para 1.
Keywords: Copyright Law, Copyright Reform, Intermediaries, Germany, France, French High Council for Literary
and Artistic Property (CSPLA)
ond policy document has a more limited focus. The
French High Council for Literary and Artistic Property
(“CSPLA”)’s Mission to Link Directives 2000/31 and
2001/29 – Report and Proposals (“Mission Report”)
aims to provide a persuasive intervention in current
policy discussions at European Union level concern-
ing the liability or, more appropriately, the non-lia-
bility, of online intermediaries for copyright infringe-
ment. In this brief introduction, I outline the scope
of both proposals and reflect briefly on their recom-
mendations.
Abstract: Two very different proposals on
copyright policy – one a privately drafted document,
the other a governmental report – are published in
this edition of JIPITEC. There is an interesting point of
intersection between them because they both con-
sider the difficult question of the liability of online in-
termediaries for users’ infringements. The first doc-
ument is “The Berlin Gedankenexperiment on the
Restructuring of Copyright Law and Authors Rights”.
This is a wide-ranging proposal for a complete recast-
ing of the legal system that promotes the production
of, and controls the use of, creative goods. The sec-
A. The Berlin Gedankenexperiment
on the Restructuring of Copyright
Law and Authors Rights
1
The Berlin Gedankenexperiment is the product of a
project undertaken by a panel of German experts,
predominantly from academic and “new media”
backgrounds.
1
It develops an earlier set of guidelines
on copyright policy issued by the “Internet &
Gesellschaft Collaboratory”,2 which is supported by,
amongst others, Creative Commons, Google and the
Wikipedia Foundation. The project takes a “blank
1 The German original is available at
wp-content/uploads/2015/08/Gedankenexperiment.pdf>. -
The English translation is reprinted on p. 76 of this volume.
2 .
page approach”, allowing the Gedankenexperiment
to escape prevailing copyright norms where
appropriate. However, it is clearly shaped by the view
that the current system of copyright and author’s
rights is problematic in a number of respects.
2 The dominant problem at which the proposal takes
aim is the transferability of legal entitlements in
creations from authors to other categories of actor
(generally to “exploiters”, under the terminology
employed). On this point, it is argued that, where
one legal actor steps into the shoes of another in this
way, there is a risk that the fundamental purpose of
a legal regime designed to foster creativity will be
subverted:
“Confusing and mixing authors’ and exploiters’ interests
opens space for manipulative arguments, which may foster
Proposals from Berlin and Paris – Intermediary Liability in European Copyright Law
2016
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undesirable developments. These lead to a conict of values,
which may ultimately undermine the copyright law system
as a whole.”3
3 The Gedankenexperiment seeks to avoid this problem
through the establishment of strict distinctions
between the interests of different legal actors
involved in the production and use of creative
work. Under the proposed system, different
categories of legal actors in the creative process
(“authors”, “exploiters”, “non-commercial users”
and “intermediaries”) are each accorded their own
entirely independent rights and duties. The legal
position of each is balanced against that of others,
without attribution of “structural superiority” to
any amongst them. The underlying idea is that the
separate contribution of each to the generation of
creative products should be separately recognised
and protected.
4
The authors of the Gedankenexperiment suggest that a
whole-hearted commitment to this core idea would
produce a legal structure differing from that which is
currently applicable. For example, under the system
proposed, a creator (such as a novelist) would be
able to grant an “exploiter” (such as a publisher)
(contractual) permission to exploit a protected
work. However, as a matter of law, such permission
could only be granted for a limited period of time.4
At the same time, the publisher would itself acquire
its own separate legal right in its published edition
(recognising its own distinctive contribution to the
dissemination of creativity). At the end of the limited
period of permission, the publisher could continue
to market its own published editions. However,
from that point forward, it would potentially be
subject to competition from other published editions
permitted by the author.
5
The proposal is not intended to establish a
fully codied body of rules. It is, after all, a
Gedankenexperiment and it therefore raises, but
does not come to a concluded view on, a number
of features of the proposed system - including the
precise duration of the various forms of protected
interest and the specic treatment of complex works
such as lms and of works created by employees. In
3 Berlin Gedankenexperiment, 3.
4 Ibid, 4. The document does not provide a nal
recommendation of an appropriate period for which
permission may be given. – It should be noted that in its
recent proposal for a law improving the claim of authors and
performers to adequate remuneration, the German Federal
Government proposes, albeit on the basis of a different
legal construction, a somewhat similar result in providing
that an author, who has granted an exploiter an exclusive
exploitation right against payment of a lump sum fee,
shall be free after ten years to exploit his work otherwise,
with the initial exploiter retaining a non-exclusive right
to continue his own exploitation; see § 40a (1), BT-Drucks.
18/8625.
tracing the outline of a legal structure in this way, the
project insulates itself from detailed critical analysis.
Nevertheless, even against this avowedly sketchy
background, it invites questions from the concretely-
minded. For example, one of the categories of legal
actor to which the proposal attributes rights and
duties is described as “non-commercial users”. Such
users have a right to carry out acts which either (i)
fall within a specied catalogue of use rights or (ii)
are covered by an open fair use-type norm. However,
the document makes no mention of commercial users
in this context. Such users presumably fall within
the category of “exploiters”, who have their own
designated duties and rights. However, while the
proposal traces the entitlement of exploiters who
have been granted contractual permission to use a
copyright work, it does not appear to deal explicitly
with the situations in which a commercial actor is
typically entitled to use a copyright work without
permission under current law (for example, for the
purpose of quotation, news reporting or parody).
This must surely simply be an omission. If the project
team had intended to restrict the circumstances
under which commercial users are entitled to
commit otherwise infringing acts, it would surely
have done so explicitly.5
6
The Gedankenexperiment’s ‘blank page” approach
undoubtedly brings a breath of fresh air to the
sometimes poisonous debate on copyright reform.
However, while it might appear to be based on a
radical premise, its recommendations are relatively
incremental in some respects. Many features of
existing copyright and authors’ rights systems –
including creators’ moral rights, copyright contract
regulation and the special regimes applicable to
lm productions and to creations by employees
– are retained. Indeed, even those elements of
the proposal involving signicant change to the
existing legal order (with the possible exception
of the elaborated “balance of independent rights”
system outlined above) echo suggestions for reform
made elsewhere in the recent past. Thus, for
example, under the Gedankenexperiment, the terms
of protection for authors’ and exploiters’ rights
would be signicantly shorter than those currently
prevailing in European and international law. Many
such calls to reduce the term of copyright so that it
more closely reects its underlying rationales have
been made. Similarly, the proposal’s suggestions
that authors’ promises of exclusivity should be
5 Editor’s note: The drafters of the Gedankenexperiment have
explained that the term „non-commercial user“ was only
chosen to set a clear terminological distinction between
users who are entitled to use protected material by statute
and those who need a license for their uses (the latter are
referred to as „exploiters“). This does not necessarily mean
that there uses for a commercial purpose cannot fall under
the user’s statutory rights. Whether this is the case or not,
depends on the particular balance of interests.
2016
Jonathan Griffiths
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noted in a public registry, that the continuation of
the exclusive protection for those that invest in the
dissemination of works should be conditional on the
payment of progressively increasing fees and that
exceptions and limitations should be replaced with
a set of “user’s rights” for non-commercial users and
a fair use-type clause all are not without precedent.
Indeed, in the last case, recent judgments of the
Court of Justice may already have delivered such an
outcome in the European Union.6
7
Even the Gedankenexperiment’s most distinctive
proposal, the “balance of independent rights”
system may not have been breathed into life ex
nihilo. To this common lawyer’s untrained eye,
the project’s emphasis on the non-transferability
of author’s entitlements looks rather like a super-
charged extension of the current German system
for the protection of author’s rights. It would appear
that the page upon which this stimulating proposal
has been drawn up may not have been entirely blank
after all.
B. Intermediaries
8
The relatively reasonable, modest characteristics
of the Gedankenexperiment are also apparent in its
proposals concerning the potential liability of
online intermediaries for copyright infringement.
This is one of the most contested questions in
current debates on copyright policy. Legal systems
have struggled to develop appropriate theories to
impose responsibilities on intermediaries without
over-burdening them in a manner that would
unreasonably hamper the functioning of new
forms of communication technology. Considerable
uncertainty on this question persists in many
jurisdictions.7 Within the European Union’s legal
order, online intermediaries benet from the
E-Commerce Directive’s “safe harbours” for
6 Through its reliance on the Charter of Fundamental Rights
in interpreting the copyright acquis. See, for example, (C-
201/13) Deckmyn v Vandersteen, 3rd September 2014.
7 For discussion, see, for example, J Wang, “Not all
ISP Conduct is Equally Active or Passive in Differing
Jurisdictions: Content Liability and Safe Harbor Immunity
for Hosting ISPs in Chinese, EU and US Case Law” [2015]
EIPR 732; Federal Supreme Court (Bundesgerichtshof); 26
November 2015 – Case No. I ZR 174/14, “Germany: Disturber
Liability of an Access Provider” [2016] IIC 481; A Gärtner &
A Jauch, “Gema v RapidShare: German Federal Supreme Court
Extends Monitoring Obligations for Online File Hosting
Providers” [2014] EIPR 197; C Angelopoulos, “Beyond the
Safe Harbours: Harmonising Substantive Intermediary
Liability for Copyright Infringement in Europe” [2013] IPQ
253; M Leistner, “Structural Aspects of Secondary (Provider)
Liability in Europe” [2014] Journal of Intellectual Property
Law & Practice 75.
information service providers.
8
Under these general
provisions, when information service providers
function as “mere conduits”9, “caches”10 or as
“hosts”11 for information originating from others,
they enjoy immunity from liability for damages for,
inter alia, copyright infringement as long as certain
conditions are satised.12
9 Thus, for example, under Art 14 of the E-Commerce
Directive, where an information society service
provider stores information provided by a recipient
of its service (i.e. it functions as a “host”), it will not
be liable for damages if it (i) has no actual knowledge
of illegal activity and is not aware of facts or
circumstances from which illegal activity is apparent
and (ii) acts expeditiously to bring any illegal activity
to an end on receiving such notice.
13
The scope of
this provision is contested and some have argued
that, while it might have been appropriate to grant
such an immunity in the early years of development
of networked electronic communications, online
platforms, such as YouTube, now make vast prots
through the hosting of unlicensed copyright
materials posted by users and have no need for
such shelters from liability. Critical concerns have
been exacerbated by the Court of Justice’s broad
interpretation of Art 14 in cases such as Google France,
in which the Court interpreted the hosting immunity
as applying in circumstances in which a service
provider lacks specic knowledge or control of
stored data and fulls a “merely technical, automatic
and passive” role.14 The European Commission is
currently considering this issue within its review of
the Union’s copyright rules.15
10
The Gedankenexperiment advocates a nuanced
approach to the legal responsibility of intermediaries:
“For an appropriate balance of interest, it seems necessary
8 Directive 2000/31/EC of the European Parliament and of the
Council of 8 June 2000 on certain legal aspects of information
society services, in particular electronic commerce, in the
Internal Market.
9 Art 12.
10 Art 13.
11 Art 14.
12 The provisions do not preclude the grant of injunctions
against service providers conducting the specied activities
(Arts 12(3), 13(2), 14(3). Information service providers also
benet from a prohibition on the imposition of a general
obligation to monitor for infringement and/or a general
obligation actively to seek facts or circumstances indicating
illegal activity (Art 15).
13 Art 14(1)(a), (b).
14 (C-236/08 – 238/08) Google France v Louis Vuitton [2010]
ECR I-2417. See also (C-324/09) L’Oréal SA v eBay [2011] ECR
I-6011.
15 See European Commission, Towards a Modern, more European
Copyright Framework, 9th December 2015, COM (2015) 626
nal.
Proposals from Berlin and Paris – Intermediary Liability in European Copyright Law
2016
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to differentiate between intermediaries whose offers tend to
compete with goods and services from exploiters/creators
or may even substitute them (“competing intermediary
services”), and those whose offers complement the goods
and services of rights owners or even make them possible in
the rst place (“complementary intermediary services”).’16
11 Intermediaries that are “close to the content” (such
as video and image hosting platforms) are considered
to be more likely to compete with the offering of a
creator/exploiter than intermediaries that are “far
from the content” (such as, for example, technical
internet access providers). Within the category of
“competing” intermediaries, the Gedankenexperiment
makes further distinctions. It recognises, for
example, that the full range of legal remedies
ought to be available against an intermediary that
is concerned purely to freeride on the creative
contribution of authors and exploiters. However, it
is acknowledged that the situation of other online
platforms is more ambiguous because, while they
may cause prejudice to rightholders’ distribution
channels, they also promote public welfare in certain
important respects.
12
In keeping with the approach that it adopts
throughout, the Gedankenexperiment suggests that,
in such circumstances, the interests of the various
affected categories of actor must be balanced and
that:
“A possible result of such a balancing act could be that
providers of legitimate (potentially) competing offers…
would be given an obligation to pay monetary compensation
in lieu of their users, e.g. in the form of shares in revenue or
an adequate compensation.”17
13
Under such a system, which is acknowledged to bear
similarities to some currently applicable mechanisms,
an intermediary would have to decide itself whether
to pass on the costs of such compensation to users or
to nance the payment in other ways (presumably,
for example, by advertising). In return for the
assumption of an obligation to pay compensation,
intermediaries would be completely relieved of
monitoring obligations18 and would be provided with
immunity from liability for its users’ infringements.
14
In truth, this analysis of the problem does not get
us particularly far. On the face of it, the “close to
the content”/”far from the content” distinction is
16 Berlin Gedankenexperiment, 13 (footnote omitted).
17 Ibid, 14.
18 While Art 15 of the E-Commerce Directive precludes
general monitoring obligations, some Member States have
sometimes imposed more specic monitoring obligations
on information service providers. See, for example, A
Gärtner & A Jauch, “Gema v RapidShare: German Federal
Supreme Court Extends Monitoring Obligations for Online
File Hosting Providers” [2014] EIPR 197.
more descriptive than analytical and the suggestion
that the potential loss of revenue to rightholders
could be made up through a balanced compensation
system is not revolutionary. Nevertheless, the
Gedankenexperiment’s strong commitment to the
recognition and reconciliation of competing interests
takes the notion of “balance” beyond rhetoric and,
at least, establishes a foundation for the exploration
of the problem of intermediary liability. By contrast,
the second proposal published in this edition of
JIPITEC addresses the same question but takes a very
much less tentative and reective position.
C. The Mission to Link Directives
2000/31 and 2001/29
15 The High Council for Literary and Artistic Property
(Conseil supérieur de la propriété littéraire et artistique,
CSPLA) is responsible for advising the Minister
of Culture and Communications of the French
Republic on matters relating to literary and artistic
property. Created under legislative order, it has
produced a number of reports on questions relating
to authors’ rights.
19
Its “Mission to Link Directives
2000/31 and 2001/29”20 was presided over by
Professor Pierre Sirinelli21 and reported at the end
of 2015.22 The Mission, which consulted a number
of stakeholders,23 focused on two questions. First, it
considered whether: “…[T]he regimes implemented
by Articles 12 to15 of the E-Commerce Directive of
8 June 2000 (Directive 2000/31/EC) truly provide a
full understanding of the activities of certain service
providers (Web 2.0 in particular) who were barely in
existence when this legislation was adopted?”
16
Secondly, should the answer to the rst question
prove to be negative, the Mission’s role was to
investigate potential solutions to the problem
presented by the inappropriate application of the
19 See
gouv.fr/url/Result.aspx?to=en&url=http://www.
culturecommunication.gouv.fr/Politiques-ministerielles/
Propriete-litteraire-et-artistique/Conseil-superieur-de-la-
propriete-litteraire-et-artistique/Travaux>.
20 The original site for the document reprinted on p. 88 of
this volume is
gouv.fr/url/Result.aspx?to=en&url=http://www.
culturecommunication.gouv.fr/Politiques-ministerielles/
Propriete-litteraire-et-artistique/Conseil-superieur-de-
la-propriete-litteraire-et-artistique/Travaux/Missions/
Mission-du-CSPLA-sur-l-articulation-des-directives-2000-
31-et-2001-29>.
21 Université Paris-I (Panthéon-Sorbonne).
22 3 November 2015. Vice-Presidents of the Mission were Josée-
Anne Benazeraf (lawyer at the Paris Bar) and Alexandra
Bensamoun (Senior Lecturer, Université Paris-Sud).
23 Although “some technical service provider representatives
opted not to respond to the mission’s invitation” (Mission
Report, 2).
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Jonathan Griffiths
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E-Commerce Directive’s safe harbors in the current
technological context. The Mission Report builds on
an earlier CSPLA report, likewise led by Professor
Sirinelli, on proposals to revise the Information
Society Directive.24 That earlier report recommended
that the E-Commerce Directive’s immunities should
be re-examined because of their negative effect on
the holders of rights in literary and artistic property.
17 In these circumstances, it is perhaps not surprising
that the rst question (“Does something need to be
done?”) does not detain the authors of the Mission
Report for very long. They note a near unanimous
view among stakeholders that platforms’ claims to
immunity are problematic.25 The Mission then goes
on to consider the cause of, and potential solutions
to, the problem that it has identied. It is highly
critical of the Court of Justice interpretation of
the scope of the Art 14 immunity as covering the
activities of highly protable platforms (described as
“false hosting providers” in the report). The nding,
in Google France, that information service providers
fall within the safe harbour where they do not play
an active role, so as to give them knowledge of, or
control over, stored data, is characterized as an error
of interpretation that should be remedied through
European legislation. The Mission’s preference in
this regard is for the implementation of a copyright-
specic solution rather than for a general revision
of the E-Commerce Directive.
18 More specically, it recommends the introduction
of a new Article in the Information Society Directive
(Art 9a):
“Without prejudice to Articles 12 and 13 of the Directive on
electronic commerce, information society service providers
that give access to the public to copyright works and/or
subject-matter, including through the use of automated tools,
do not benet from the limitation of liability set out by Article
14 of said Directive.
These service providers must obtain permission from
the relevant rightholders as they, either alone or with the
participation of users of their services, are implementing the
rights set out by Articles 2 and 3.
Such permission covers acts performed by users of their
services when they send the copyright works and/or subject-
matter to the aforementioned service providers in order to
allow the access set out by sub-paragraph one, as long as
these users are not acting in a professional capacity.” 26
24 Conseil supérieur de la propriété littéraire et artistique,
Report of the Mission on the Revision of Directive 2001/29/EC on
the Harmonisation of Certain Aspects of Copyright and Related
Rights in the Information Society, December 2014.
25 “This afrmative response would have been unanimous
but for the caution of certain technical service providers”
(Mission Report, 3).
26 The proposed new Article is accompanied by two proposed
19
According to the Mission Report, this provision would
restore a “better sharing of value” by distinguishing
between service providers which purely “store”
information for third parties (and would presumably
still be covered by Art 14) and service providers
which “give access to the public” to copyright
works, and other protected material, and which
would therefore be liable for infringement (with
their infringing users).
20
Such a change would diminish the scope of the
Art 14 immunity as it is understood today. Given
that the Report’s aim is to amend the Information
Society Directive, it also seems possible that the
introduction of the new Art 9a might risk expansion
of the scope of liability well beyond the “YouTube”-
type situation at which the Mission is ostensibly
aimed. If the draft provision were introduced, the
Court of Justice would have to wrestle with the
relationship between the concepts of “giving access
to the public”, “making available to the public”
and “communication to the public”. As a result, it
seems likely that the introduction of the proposed
Art 9a would add complexity to an already confused
area of jurisprudence.27 As any shifts in the current
situation would be likely to favour right-holders, this
consequence might not be entirely unwelcome to
the authors of the Mission Report. Nevertheless, they
acknowledge that a diminution in the scope of Art
14 might cause difculties for online intermediaries.
Their proposed solution is, rst, the introduction
of transitional protection for intermediary business
models developed on an expectation of immunity
and, secondly, the implementation of a “duty of
collaboration” between rightholders and service
providers. It is perhaps rather ironic that, while
the Mission Report is based on the assumption that
the initially intended reach of the E-Commerce
Directive’s immunities is no longer appropriate in
current technological conditions, the solution that it
identies is a reversion to legal orthodoxy, anchored
by the authority of the Berne Convention,28 a Treaty
rst agreed in 1886 and last revised in the 1970s.
21
By contrast with the Gedankenexperiment’s somewhat
incomplete and speculative tracing of principle,
the Mission Report is pragmatic and detailed. It
is therefore not surprising that its faults are
very different from those of the open-minded
Gedankenexperiment. The disdainful rhetoric of the
report leaves a reader with the strong impression
that it might have been possible to predict the
broad thrust of its conservative recommendations
new recitals (16a and 24a).
27 For recent interventions on this issue, see (C-160/15) GS
Media (Opinion of AG Wathelet, 7th April 2016); (C-117/15)
Reha Training (Court of Justice, Grand Chamber, 31st May
2016).
28 See Mission Report, 11, 12.
Proposals from Berlin and Paris – Intermediary Liability in European Copyright Law
2016
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in advance of its consultation with stakeholders.
It takes no account whatsoever of arguments that
could be advanced in favour of a less conservative
solution to the “value sharing” issue. Presumably,
one of the underlying reasons for the Court of
Justice’s broad interpretation of Art 14 in Google
France was its sense that some of the public benets
of technological advance might be lost if right-
holders were granted unmitigated dominion over
the activities of online platforms. The Mission Report
does not engage with such concerns. Similarly, there
is no mention of the fundamental rights framework
upon which the Court of Justice has structured
all its recent responses to intermediary liability.
Through the application of the Charter, the Court
has acknowledged the need to balance the right
of property of copyright owners with the right to
conduct a business of service providers and the right
of freedom of expression, and access to information,
of users.29 In the Mission Report, no time is wasted on
a discussion of this framework of competing rights
or, indeed, on the due process rights of users under
the “notice and take down” process facilitated by the
E-Commerce Directive’s safe harbours.
22
It is impossible to escape the conclusion that the
Mission’s predominant intention was to put down a
marker for current discussions on copyright reform
at European level. However, it seems unlikely that
the European legislator will be entirely persuaded by
its call to apply a right-maximalist form of regulation
in the online environment. The “duty to collaborate”
that the Mission envisages is surely too weak to offer
adequate protection to online intermediaries (and,
therefore, to the public interests that their activities
support).
30
The strengthening of such a system based
upon forced negotiations might, however, bring
the proposal closer to the zone occupied by the
Gedankenexperiment’s suggestion of an obligation to
pay compensation or, indeed, to the current legal
situation in which platforms pay a proportion of
advertising revenues to creators and have negotiated
licence agreements with bodies representing right-
29 See, for example, (C-275/06) Promusicae v Telefonica de Espana
[2008] ECR I-271; (C-70/10) SABAM v Scarlet Extended [2011]
ECR I-11959; (C-314/12) UPC Telekabel Wien GmbH v Constantin
Film Verleih GmbH, 27th March 2014. For discussion, see C
Angelopoulos, “Tracing the Outline of a Ghost: the Fair
Balance between Copyright and Fundamental Rights in
Intermediary Liability” (2015-16) Info – the Journal of
Policy, Regulation and Strategy for Telecommunications,
Information & Media” 72.
30 The Mission Report has not been particularly well received
by online intermediaries. See CSPLA, Commentaires des
organismes professionnels membres du CSPLA sur le rapport relatif
à l’articulation des directives 2000/31 et 2001/29, 2-5 (Response of
ASIC, l’Association des Services Internet Communautaires).
For an example of an interpretation of copyright rules in a
manner that recognises to develop legal principles in the
face of technological change, see the recent Opinion of AG
Spuznar in (C-174/15) Vereniging Openbare Bibliotheken, 16th
June 2016.
holders. I would argue that a half-appropriate
solution to the problems presented by platforms’
hosting activities is much more likely to be found
through a difcult exploration of this contested
zone than through any reassertion of doctrinaire
copyright orthodoxy.
* Jonathan Grifths, BA (Oxon) MA is a Reader in Intellectual
Property Law at Queen Mary University of London.
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