Value gap

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The “value gap” (literally “value gap” ; analogous to the value added gap ) is a catchphrase from the legal and political debate about copyright . The term refers to an alleged imbalance in the value chain between the owners of copyrights and related rights on the one hand and the operators of Internet sites on which media content uploaded by users is made available on the other hand: the creative industries provide the lion's share by creating content added value, but the exploitation proceeds would be drawn to a considerable extent by the platform operators. Due to the extensive relief of legal liability and monitoring, it is possible for them to comprehensively and commercially exploit the contents illegally uploaded by their users without allowing the rights holders to participate in the income generated in this way. The “outflow of value ” allegedly caused in this way is sometimes also referred to as the transfer of value .

Concept history

The use of the term “value gap” in the sense described is relatively new. Wimmers / Barudi see the origin in a campaign by large American music labels , which used it to advertise higher remuneration rates in 2015 on the occasion of remuneration negotiations with some hosting platforms. In its Digital Music Report 2015, the International Federation of the Phonographic Industry (IFPI) also denounced the “value gap” as a “market distortion” caused by the fact that digital service providers circumvented the usual rules for licensing music. A number of musicians spoke out in favor of higher remuneration from Google , the operator of the world's largest video portal, YouTube , with specific reference to a “value gap” .

Later on, efforts were made to address the “value gap”, especially in the context of changes in the law, to justify proposals for increased obligations for platform operators. In the statement submitted in 2016 by 18 associations and organizations from the music industry for a reform of the American Digital Millennium Copyright Act , an “unacceptable value gap between the demand for music and the proceeds flowing back to authors and owners” was criticized dysfunctional legal situation will be favored. Exemptions from liability, which were actually intended for “passive intermediaries” on the Internet, actually also protected “active providers of digital music” from having to negotiate licenses with rights holders. In a letter to the newly elected American President, Donald J. Trump , the American Association of Independent Music and 18 other associations and organizations from the music industry spoke of a “value grab” at the end of 2016, using the term “value gap” grab " grab, grab ") that needs to be eliminated. Some internet conglomerates would “exploit legal loopholes” and in this way “perverse American law in order to underpay musicians and thereby damage an engine of the economy and the labor market”.

European Union Copyright

The question of a “value gap” plays a prominent role in the debate surrounding the European Commission 's proposal for a new EU directive on “Copyright in the digital single market” presented in 2016 . With its legislative proposal, the Commission wants to work specifically to close the alleged exhaustion gap by adjusting the liability regime.

The representatives justify the “value gap” induced by law in essence with the liability system for platform operators in the European Union. A host provider is not liable if he either "has no actual knowledge of the illegal activity or information and, with regard to claims for damages, [...] is also not aware of any facts or circumstances to whom the illegal activity or information becomes obvious "and the provider," as soon as he gains this knowledge or awareness, immediately takes action to remove the information or block access to it "(Art. 14 Para. 1 E. -Commerce Policy); there is no proactive, general monitoring obligation (Art. 15 para. 1 E-Commerce Directive). Whether this privilege can also be applied to services such as YouTube is a matter of dispute and is not judged uniformly by European courts. In many cases, however, national regulations on intermediary liability also result in a comprehensive exemption from liability. According to the criticism, this creates a system in which a platform operator can essentially wait until a rights holder notifies him of a new legal violation and he has to delete the content; In the meantime, he could earn money from the video views, while the rights holder not only had to shoulder the monitoring costs himself and was in a constant race with the uploaders, but then did not even have claims for damages or reimbursement of expenses against the platform operator.

According to the (original) Commission proposal, this should be countered by requiring intermediaries who publicly reproduce large volumes of the protected works uploaded by their users to take “appropriate and proportionate measures” to ensure that the rights holders the license agreements to be concluded for this are observed. The legislative process is still in progress (as of January 2019).

General criticism

Terminologically, the term “value gap” is sometimes assumed to be somewhat vague. Marušić , for example, remarks that the reference is not clear, since the market value and social value of a work should be assessed differently. That is why the question of the (monetary) “value” that is assigned to a product ultimately lies in the eye of the observing user. It should also be borne in mind that, depending on the way in which it is presented, a product can also have an “innovative value” or “inspirational value”.

In terms of content, the assumption of a "value gap" is countered by the fact that the figures cited by the IFPI as evidence do not represent a sufficient data basis. The debate also neglects the fact that it is not possible to speak of “the platform operators” in a uniform manner. In fact, there are considerable differences between individual actors. For example, YouTube as a video platform is not primarily a music service for the vast majority of users, which is why an average user of the platform consumes much less music there than is the case with an average Spotify user account. Therefore, it is ultimately questionable whether the rights holders actually suffer a loss of remuneration - the vast majority of users are probably not willing to pay for music use: "If YouTube didn't exist, so the conclusion about this user, his 'listening time' would not be redirected to other payment models; it would be lost. ”In addition, the advertising and discovery effect of freely accessible music should not be overlooked; This ultimately also has a positive effect on the use of music against payment.

In addition, there is doubt as to the extent to which the “creatives” would actually benefit from higher remuneration from the platform operators. For example, performers usually assign their rights to a label or grant such a label exclusive rights of use. Therefore, remuneration from the platform operator initially goes to the label - how much will actually go to the interpreter is, according to the criticism, uncertain.

literature

  • Malek Barudi: “Value Gap”? - On the debate on the liability regime for hosting services in relation to copyright infringement . In: Moritz Hennemann, Andreas Sattler (eds.): Intellectual property and digitization: Young science on industrial property protection, copyright and media law . 2nd Green Area Assistant Conference. Nomos, Baden-Baden 2017, ISBN 978-3-8487-4102-1 , p. 163-181 .
  • Maria Letizia Bixio: Differenti discipline applicabili ai nuovi modelli di business dell'industria musicale . In: Stefania Ercolani, Giovanna Rita Migliozzi (eds.): Prove di resistenza del diritto d'autore: Modelli di distribuzione delle opere sulle piattaforme digitali: Incontro in memoria di Mario Fabiani (=  Quaderni di ALAI Italia ). Aracne, Canterano 2018, ISBN 978-88-255-1176-5 , pp. 109-135 .
  • Séverine Dusollier: Intermédiaires et plateformes de l'Internet, cet éléphant dans le salon du droit d'auteur . In: Alexandra Bensamoun (ed.): La réforme du droit d'auteur dans la société de l'information . Mare & Martin, Paris 2018, ISBN 978-2-84934-311-1 , pp. 165-201 .
  • Giancarlo F. Frosio: To Filter, or Not to Filter? That Is the Question in EU Copyright Reform . In: Cardozo Arts & Entertainment Law Journal . tape 36 , no. 2 , 2018, p. 331-368 .
  • Giancarlo F. Frosio: Reforming Intermediary Liability in the Platform Economy: A European Digital Single Market Strategy . In: Northwestern University Law Review . tape 112 , 2017, p. 19-46 .
  • Silke von Lewinski: The European Commission's proposals for the so-called “Value Gap” . In: Thomas Dreier, Karl-Nikolaus Peifer, Louisa Specht (Hrsg.): Lawyer for Copyright: Festschrift for Gernot Schulze on his 70th birthday . Beck, Munich 2017, ISBN 978-3-406-71649-2 , pp. 381-385 .
  • Agnès Lucas-Schloetter: Transfer of Value Provisions of the Draft Copyright Directive (recitals 38, 39, article 13): An Appraisal. 2017, accessed on September 11, 2018 (PDF file, 1.1 MB).
  • Branka Marušić: Derogating Regulative and Enforcement Powers in Copyright Protection in the Digital Market: A Trojan Horse for the EU? In: Croatian Yearbook of European Law and Policy . tape 13 , 2017, p. 169-190 .
  • Georg Nolte: Three theses on the current debate on liability and fair distribution in hosting services with user-generated content (so-called “value gap” debate): Lecture at the working session “Remuneration equity on online platforms” of the Institute for Copyright and Media Law on January 20, 2017 in Munich . In: Journal for Copyright and Media Law . tape 61 , no. 4 , 2017, p. 304-312 .
  • Jörg Wimmers, Malek Barudi: The Myth of the Value Gap: Criticism of the alleged value gap when using copyrighted content on hosting services . In: Commercial legal protection and copyright . tape 119 , no. 4 , 2017, p. 327-338 .

Remarks

  1. ↑ Barudi, “Value Gap”? - On the debate on the liability regime for hosting services with regard to copyright infringement , 2017, op.cit., P. 165.
  2. ↑ Bixio, Differenti discipline applicabili ai nuovi modelli di business dell'industria musicale , 2018, op. Cit., P. 111 f .; Dusollier, Intermédiaires et plateformes de l'Internet, cet éléphant dans le salon du droit d'auteur , 2018, op.cit., P. 166.
  3. ^ Similar to Matthias Leistner and Axel Metzger , A new solution for copyright law , in: Frankfurter Allgemeine Zeitung , January 3, 2017, p. 13. Regarding certain fluctuations in definitions: Barudi, “Value Gap”? - On the debate on the liability regime for hosting services in relation to copyright infringements , 2017, op.cit., P. 164 ff.
  4. ↑ See, for example, Lucas-Schloetter, Transfer of Value Provisions of the Draft Copyright Directive (recitals 38, 39, article 13) , 2017, op. Cit .; GEMA, GEMA yearbook 2017/2018 , Nomos, Baden-Baden 2017, ISBN 978-3-8487-4478-7 , p. 44
  5. ↑ Barudi, “Value Gap”? - On the debate on the liability regime for hosting services with regard to copyright infringement , 2017, op.cit., P. 164.
  6. ↑ Wimmers / Barudi, Der Mythos vom Value Gap , 2017, op. Cit., P. 327. In this sense also Frosio, Reforming Intermediary Liability in the Platform Economy , 2017, op. Cit., P. 26 f. See also Glenn Peoples, War of Words: Labels and Trade Groups Target YouTube's 'Value Gap' , in: billboard.com , April 13, 2016, accessed September 11, 2018.
  7. ↑ IFPI, IFPI Digital Music Report 2015 (PDF file, 12.6 MB), accessed on September 11, 2018, p. 23.
  8. ↑ See, for example, Debbie Harry , 'Music matters. YouTube should pay musicians fairly ' , in: The Guardian Music blog , April 26, 2016, accessed September 11, 2018; Nelly Furtado , YouTube pays more than nothing. That doesn't make it fair ' , in: The Guardian Music blog , May 2, 2016, accessed September 11, 2018.
  9. ↑ Wimmers / Barudi, Der Mythos vom Value Gap , 2017, op.cit ., P. 327.
  10. ↑ American Association of Independent Music et al., Joint Comments Submitted in Response to US Copyright Office's Dec. 31, 2015 Notice of Inquiry (PDF file, 1.0 MB), April 1, 2016, accessed on September 11, 2018, Appendix C, p. 5.
  11. ↑ American Association of Independent Music et al., Letter to Donald J. Trump, President-Elect of the United States (PDF file, 0.3 MB), December 13, 2016, accessed September 11, 2018.
  12. ↑ Frosio, To Filter, or Not to Filter? , 2018, op.cit., P. 337 f.
  13. ↑ In addition, Christina Angelopoulos, European Intermediary Liability in Copyright: A Tort-Based Analysis , Kluwer, Alphen aan den Rijn 2017, ISBN 978-90-411-6835-1 , pp. 81 ff., 100 ff.
  14. ↑ See Jie 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 , in: European Intellectual Property Review , Vol. 37, No. . 11, 2015, pp. 732-740, here pp. 734-738.
  15. ↑ See illustratively only OLG Munich, judgment of January 28, 2016, 29 U 2798/15 = MMR 2016, 833 - Allegro barbaro . Regarding the harmonization efforts of the Court of Justice, cf. for example Jan B. Nordemann, ECJ judgments GS Media, Filmspeler and ThePirateBay: a new European liability concept in copyright law for public reproduction , in: Commercial legal protection and copyright, International Part , Vol. 67, No. 6, 2018, p. 526 -535.
  16. ↑ Similar to Frosio, To Filter, or Not to Filter? , 2018, op.cit., P. 337 f.
  17. ↑ Art. 13 and recital 38 Commission draft for a directive of the European Parliament and of the Council on copyright in the digital single market of 14 September 2016, COM (2016) 593 . The obligation to conclude license agreements is not clearly regulated, cf. Dusollier, Intermédiaires et plateformes de l'Internet, cet éléphant dans le salon du droit d'auteur , 2018, op.cit., P. 189 ff.
  18. ↑ Marušić, Derogating Regulative and Enforcement Powers in Copyright Protection in the Digital Market , 2017, op.cit., P. 170.
  19. ↑ Wimmers / Barudi, Der Mythos vom Value Gap , 2017, op.cit ., P. 328.
  20. ↑ Wimmers / Barudi, Der Mythos vom Value Gap , 2017, op. Cit., P. 329. In this sense, also Nolte, Three Theses on the Current Debate on Liability and Fair Distribution in Hosting Services with User-Generated Content (so-called "Value- Gap "debate) , 2017, op. Cit., P. 311.
  21. ↑ Wimmers / Barudi, Der Mythos vom Value Gap , 2017, op.cit ., P. 329.
  22. ↑ In this sense, for example Michael Grünberger, Remuneration Justice on Online Platforms: Introduction to the working session of the same name of the Institute for Copyright and Media Law on January 20, 2017 in Munich , in: Journal for Copyright and Media Law , Vol. 61, No. 4, 2017, pp. 265–268, here p. 267.