Music piracy: the German position
According to a study on behalf of the German Federal Association of the Music Producing Industry (Bundesverband Musikindustrie) the number of illegal music album downloads in Germany has increased in 2011 by about 35 % when compared with 2010, whereas the number of illegal single music track downloads dropped by about 28%.
Given the extent of music piracy, German music businesses and rights holders have unsurprisingly put an enhanced emphasis on the identification and prosecution of copyright infringements.
German law offers a variety of legal means to prosecute illegal file sharing and to enforce copyrights. These legal provisions and sanctions also apply to intermediaries and certain third parties: internet subscribers have been held liable by the German courts in cases where copyright has been infringed via an internet connection held by that subscriber, but not necessarily by that subscriber. That internet subscriber could be a private person, a company or an employer.
While there are existing means to tackle piracy, enforcement and protection of music copyright are the subject of perpetual debate in German politics and case law.
Enforcement of copyright under German law
Under German law1, a rights holder may require an internet service provider (ISP) to disclose the name and address of the person who is the subscriber of an internet connection via which illegal filesharing has been committed. Before an ISP will provide these details, it will normally require the rights holder to provide a court order, ordering disclosure. This is due to the sensitivity and the constitutional protection of traffic data under German law. The position is similar in the UK. Most UK based ISPs require rights holders to provide them with an order directing the provision of details to the rights holder before they will share customer data (read more about this here).
There is some uncertainty under German law as to the conditions a rights holder must demonstrate before a court will grant an order for disclosure. These uncertainties concern the extent of the copyright infringement: some judges hold that any act of file sharing fulfils the legal preconditions for disclosure whereas others require copyright infringements within a "relevant period of exploitation". However, in the majority of cases, ISPs are ordered to disclose customer data.
Following disclosure, claims for injunctive relief and compensation often follow. Claims for compensation may only be asserted against the direct infringer, i.e. the infringer may be sued (a) for actual loss or, (b) at the rights holder’s option, for an account of profit received as a result of the copyright infringement (‘Verletzergewinn’) or (c) finally, for compensation on the basis of a notional licence fee (‘Lizenzanalogie’).
Claims for injunctive relief may be brought against the infringer as well as any third party involved in the act of copyright infringement (such as an ISP or an internet subscriber).
In terms of third party obligations, various approaches have been pursued before the courts:
- a video streaming platform has recently been ordered by a District Court to implement screening applications and filter software in order to prevent copyright infringements (the decision is not yet legally binding).
- In other pending proceedings, submissions have been made about imposing blocking and monitoring obligations on ISPs, but no judgment has been given yet. Hence, it is not entirely clear what third parties such as ISPs must do in order to comply with their obligations.
In the meantime, according to German case law, it is notable that providing publicly accessible wireless networks (for example in hotels, pubs, restaurants or coffee bars) is fraught with essential risks, due to the potential liability of internet subscribers for the actions of others using that internet connection.
The Political Debate
The music industry proposes a more restrictive copyright law which would tighten third party obligations (such as filtering/blocking obligations for ISPs). A less radical point of view supports maintaining the existing provisions and, conversely, strengthening the principle of collective licensing of rights by collecting societies. Other approaches include the introduction of onscreen warning signals (such as a red flag symbol) when internet users go to download illegal content. "Three strikes and you are out" models (as is the French system under the HADOPI laws ) are mostly rejected. A minority opinion claims for lump sum remuneration (a so called "culture flat rate") according to which a certain fee will be charged monthly by the ISP for each internet connection.
The German digital music market is hugely diverse and offers legitimate opportunities and alternatives to illegal filesharing. Altogether, 48 download services (such as amazonmp3; iTUNES, MUSICLOAD, ZAOZA), 14 subscription services (especially MUSIC Unlimited, SIMFY and SPOTIFY) and another 14 advertising supported services (Clipfish, MUSIK-GRATIS, MYVIDEO) are available. In 2010 total revenue of EUR 204 million was generated through the sale of digital products. This amount is an increase of about 17.5 % when compared with 2009.
The next few years are going to be interesting for the music industry in Germany. We may well see the German government addressing piracy with legislation (as both the UK and France have done in the last couple of years). It is not yet clear whether that will be through the tightening of third party (e.g. ISPs) obligations (perhaps by way of case law) or through the improvement of collective licensing, or both. A clearer understanding of what obligations third parties have in relation to online copyright infringement may start to emerge from the courts. It is hoped that any such changes will drive increasing numbers of consumers to download music legally through the many legitimate services available in Germany.
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"The German digital music market is hugely diverse and offers legitimate opportunities and alternatives to illegal filesharing. Altogether, 48 download services, 14 subscription services and another 14 advertising supported services are available."