Online platforms and the EU Digital Single Market inquiry
Background and Context to the Premier League's Role and Interests in the Consultation
The Premier League is the governing body of the football competition currently known as the Barclays Premier League. The Barclays Premier League is the top level competition for football clubs in England and Wales, and is the most watched continuous annual global sporting event in the world. Last season over 13 million fans attended matches with record average stadium occupancy of 95.9%. Across nine months of the year, 380 matches are viewed in 185 countries with coverage available in over 730 million households.
In the course of the 2013/14 football season (by way of example), the Premier League and its constituent clubs:
The Premier League also supports 161 Premier League, Football League and National League clubs to deliver a broad range of community programmes. Furthermore, our 15-year partnership with the FA and Government (via Sport England) to fund the Football Foundation has delivered £1.3bn of projects to date, including 544 Artificial Grass Pitches.
Over 546,000 young people engaged on community projects were directly funded by the Premier League in the last year alone. The Premier League's national School Sport Programme, which works in Primary Schools, worked with more than 168,000 schoolchildren in the last academic year.
The Premier League is owned by the 20 constituent member clubs of the Competition from time to time, who each hold a share in the Premier League.
The Premier League carries out a range of commercial activities. The largest part of its income is derived from licensing the domestic and global audiovisual rights related to the Competition. These rights include the rights to broadcast games live online, and to make recorded extracts or copies of games available via the internet.
This response focusses in particular on question 4 of the survey: "What problems, if any, do online platforms cause for you or others, and how can these be addressed?". This is because this is the issue that is most relevant to, and has the most significant impact on, the Premier League's business. The comments below are also relevant to questions 6, and 13-16 of the survey.
As discussed in greater detail below, the Premier League's concerns relate to online platforms' and other online intermediaries' involvement with and facilitation of the unauthorised exploitation of its rights online. That unauthorised exploitation threatens to undermine the Premier League's main source of revenue, and thus to undermine:
Most of the issues raised by the Premier League in this submission relate not just to online platforms as defined by the Commission, but also to other types of online intermediaries which may also form part of the chain by which pirated content is communicated to the public.
We have taken this approach as we consider it would be best to deal with the IP infringement issues raised by online platforms at the same time as those raised by other online intermediaries which are not within the definition of "online platform". We have therefore addressed the issues caused by such other intermediaries (which are also the subject of the Commission's consultation on online platforms), as well as those caused by online platforms, below. We would favour similar or identical obligations being imposed on all online intermediaries, and the term "intermediary" being given a wide scope. This is necessary because the pace of technological change is such that new categories of intermediary are constantly appearing, and obligations which were applied only to a narrower category of intermediary would soon become out of date.
A wide concept of intermediary is also consistent with established European law:
The most common types of intermediary that the Premier League most regularly encounters in seeking to prevent online infringement of its IP are:
1. Identification of suppliers and content providers to intermediaries
Identification of suppliers and content providers to intermediaries is one of the biggest challenges in seeking to protect IP rights online.
When the Premier League becomes aware of infringing content being provided through an online intermediary, it will typically contact that intermediary to request that the infringing material be taken down. However, the Premier League will also ask for the identity of the supplier of that material to the intermediary, which may be the original 'uploader' or 'streamer' of the infringing content, or an 'upstream' intermediary, involved in some part of the hosting or transmission process of the infringing content (generally referred to below as the 'Content Supplier').
In many cases, the intermediary refuses outright to provide the Content Supplier's contact details. In the cases where the intermediary is willing to provide Content Supplier details, often the intermediary is unable to provide the true identity of the Content Supplier, as they have not been provided with full/ accurate/ up-to-date contact details. False names or addresses may have been used, or the registration might have been made through a proxy service.
When an intermediary registers a new Content Supplier, full contact details should be obtained and properly verified. Attempted registrations where the true identity of the registrant cannot be verified, such as those made through proxy services, should not be permitted and, where later discovered, should result in suspension of the Content Supplier's account. The intermediary should also be obliged to provide the Content Supplier contact details to rightsowners which have notified the intermediary of infringement by the Content Supplier. The Content Suppliers themselves should have no complaint at such obligations being imposed, given they have a clear and well-established (but often-ignored) obligation in Article 5 of the E-Commerce Directive to provide to its customers various identifying information, including name, address, e-mail address, VAT no. etc.
Nominet, the .uk domain name registry, is an example of good intermediary practice in this regard, requiring complete and accurate registrant data to be provided, and applying a transparent data verification policy.
2. Experiences of intermediaries using protected works online without authorisation
The Premier League, in common with many owners of copyright in audiovisual content, spends very significant resources on an ongoing basis dealing with online intermediaries that make available live streams and clips of the Premier League's material without authorisation. For example, a number of dedicated websites (in particular the streaming link index sites referred to above) offer access to live streams of every Premier League match taking place each weekend, and short clips of content from Premier League matches are very often found on video-sharing websites such as Twitter, Vine and a number of more targeted websites and apps dedicated to sharing pirated copies of third-party clips of football matches.
Such intermediaries generate revenue (normally in the form of advertising revenue, although some operate a subscription model) as a result of web users coming to their platforms to view Premier League footage, without paying anything for the content they are monetising. They also thereby divert revenue away from the Premier League's own licensees (it may be noted that the Premier League grants the rights to broadcast clips and recordings on an exclusive basis, and the licensees of these rights are regularly harmed by such unauthorised use of Premier League content).
The Premier League therefore requires there to be meaningful obligations on intermediaries, to take down and keep down infringing content on receipt of an appropriate notice, and to provide contact details of third parties involved in the infringement (such as the original Content Suppliers).
The majority of the commercial value in audiovisual sports content relates to the period during and immediately after the sports event takes place. The Premier League therefore requires a method of ensuring this material is taken down immediately, including during evenings and weekends when the majority of Premier League matches are played.
Nonetheless, copyright owners should still have the option of requiring the intermediary to take the material down even where the Content Supplier's contact details have been provided because (i) this is likely to be the fastest, cheapest and most practical option, speed in particular being of key importance when dealing with real-time infringements of live sports (ii) the contact details for the Content Supplier may be incorrect/ out of date; (iii) the Content Supplier may be in a jurisdiction where it is impossible or impractical to pursue them; and (iv) the number of content-provider infringers generally means it is not cost effective to pursue the majority of them. Intermediaries are able to remove content on receipt of a take-down notice quickly and for little cost, whereas pursuing Content Suppliers, who rarely have take-down processes, through their local courts, is likely to be much more expensive and time consuming.
Many of the intermediaries that the Premier League deals with, in particular the hosts and streaming platforms involved with live streaming of Premier League matches, are well known for hosting illegal content. However, for clips of Premier League content, dealings with established intermediaries, well known for their legitimate content, are similarly problematic.
In a number of cases involving in particular US content sharing platforms (such as in dealings with Twitter / Vine) the Premier League has filed complaints about material with the platform. While material is often initially taken down, Content Suppliers have in a number of cases filed a counter-notice asserting with reference to the US Digital Millennium Copyright Act ("DMCA") that they have a good faith belief that the material was removed or delayed 'as a result of mistake or misidentification of the material to be removed or disabled'. These are cases where it is abundantly clear that the material does, in fact, infringe. Nonetheless, the platform has reinstated the infringing content, as they are protected under the DMCA if they do so. In this situation, under the DMCA the Premier League is left with no alternative means of getting the content removed other than obtaining a court order against the Content Supplier in order to cause the platform to remove the material. Given the time and cost involved with seeking court orders for a very large number of infringements (where new infringements occur multiple times every day), this is clearly not a practical option. By way of example, on average about 2,500 clips of Premier League matches have been uploaded to YouTube and DailyMotion alone every week since the start of the 2015-16 season. While (as mentioned below) there are aspects of the DMCA that the Premier League would like to see implemented in Europe, there needs to be a more effective means for rightsowners to force platforms to overrule unsubstantiated counter-notices.
3. Issues with EU liability regime under E-Commerce Directive - specifically in relation to Section IV (articles 12 to 15)
The Premier League has extensive experience dealing with online intermediaries in various European jurisdictions, where those intermediaries are involved with or are responsible for the online infringement of the Premier League's rights.
It is clear from these dealings that the liability regime under the E-commerce Directive is not sufficiently certain regarding intermediaries' liability for infringing content, and their obligations to take down infringing material following notification. The Premier League has found itself forced to issue court proceedings as a result of disputes over liability. For example, in current litigation against a host of vast numbers of pirated streams of Premier League content, the intermediary has consistently refused to take down streams of infringing content, despite having been sent huge numbers of clear take-down notices and having the technical ability to do so, resulting in costly and lengthy litigation.
In our experience, the different intermediaries in the chain tend to all point the finger at one another. Given this, and the difficulties identified above of locating and pursuing many of the operators in the chain, we need a wide definition of intermediary (as mentioned above) encompassing all entities involved in the chain of transmission of infringing content, between the original uploader and the end user, and all such entities must be subject to a clear obligation to operate adequate notice and take-down ("NTD") tools, or face liability.
These issues with the E-commerce Directive liability regime result in a larger number of disputes between rightsowners and intermediaries, leading to expensive and time-consuming litigation, or worse still, to rightsowners not having an effective remedy to stop infringement because the costs of litigating are prohibitive, or the time taken to litigate makes the process redundant.
The notice and take-down tools operated by various intermediaries are inconsistent, and often ineffective. In its 2012 Staff Working Document "Online services, including e-commerce, in the Single Market" the European Commission noted that NTD procedures were heavily fragmented, in particular in relation to timeframes. The lack of certainty concerning the requirement to remove or disable content 'expeditiously' often leads to slow takedown. As noted above, immediate and automatic takedown of infringing material is absolutely critical in the context of live sports content, being infringed in real-time. If there is a delay of, for example, 30 minutes before the material is removed, or takedown procedures only operate during working hours/weekdays, this will seriously limit the benefit of the NTD tools. It is similarly frustrating where the same content is reposted subsequently, or the same users post similar infringing content again, when the intermediary is capable of detecting and preventing such repeat infringements.
While some jurisdictions (such as the UK) have recognised the availability of injunctions against internet access providers, allowing 'website blocking' injunctions, this remedy is not made available consistently across the EU (see, for example the German Federal Supreme Court's decision (26. November 2015 - I ZR 3/14 und I ZR 174/14) to refuse two such injunctions, on the grounds that the rights owner had not gone to sufficient lengths to ascertain the infringer's identity, and the Swedish District Court decision also in November 2015 refusing to grant an order blocking The Pirate Bay, that most infamous host of infringing content).
Legislation clearly setting out the availability (subject to appropriate safeguards such as proportionality) of such blocking injunctions to prevent access to websites making clearly infringing content available is desirable to create a consistent level of protection throughout Europe. The Premier League would recommend modelling such legislation on the clear, predictable and fairly balanced criteria for ascertaining the availability of such an injunction which have been applied by the English courts developed through a succession of judgments that started with Twentieth Century Fox Film Corp v British Telecommunications plc and others [2011] EWHC 1981 (Ch) and is summarised in Twentieth Century Fox - v - Sky UK Limited and others [2015] EWHC 1082 (Ch).
4. Issues highlighted in typical interaction with online intermediary
By way of example of the issues posed by intermediaries more generally, the Premier League is involved in on-going litigation against an intermediary offering dedicated video-stream servers to its users on its own network, on which pirated Premier League content is frequently hosted. This particular intermediary hosts approximately a third of all infringing streams found by the Premier League. Despite being sent take-down notices containing all the information required to disable the IP address of servers communicating the unauthorised content, the host refuses to take the relevant content down. The intermediary refuses to provide information on the 'origin' of the infringing streams, despite claiming that rights owners should ignore their role and focus on the Content Supplier. As in many cases the 'origin IP address' is not visible to the Premier League, but only the video server on Ecatel's network, it is often impossible to identify the relevant source. Even where sources have been identified the only available contact details tend to be PO box addresses outside the EU, and NTDs sent to the sources are routinely ignored.
This is a typical interaction that the Premier League has with a number of intermediaries. Such intermediaries are generally the service provider most readily identified, which is necessary to effect the final communication to the public, and which makes money from hosting the infringing material, and yet refuses to comply with takedown notices or provide any information about the source of the infringing streams. The fact that these intermediaries receive payment from their customers whose content they are hosting means they are clearly in the position where they can easily control access to their services (so they can cut off those who fail to pay). However, there are other examples of more compliant hosts that provide effective take-down tools. The tools now offered by ISPs Portlane and Voxility, which allow immediate take-down of infringing material, are good examples of this.
Clearly any intermediary providing such services is in the best position to block infringing streams (when provided with the relevant information by the rights owner), and to provide information on the originating stream where required. Rights owners should not be forced to begin lengthy litigation in order to force the ISP to comply with its obligations.
Given the lack of options for rights owners to take fast and effective action against these intermediaries, they are seen as 'safe havens' within the EU for copyright-infringing content and other illegal material, and have proliferated and thrived, at the expense of more compliant competitor intermediaries, who do operate adequate NTD tools, and as a result are left struggling to compete on a playing field that is not level.
As discussed below, it is therefore the Premier League's view that all intermediaries involved in the 'supply chain' of infringing content online should be liable (or at least required to take effective measures to stop the dissemination of infringing content) unless they act on takedown notices, provide identifying information on infringing users, and suspend Content Suppliers who do not provide verifiable information on their identity. They should similarly be required, as also discussed below, to take proportionate steps within their technical capability to block such content as has been taken down from being re-hosted in future.
5. Notice and take-down procedures
(a) Notice and take-down approach for online infringements of intellectual property rights
We note the European Commission's previous consultation on procedures for notifying and acting on illegal content hosted by online intermediaries and platforms, carried out between June and September 2012, and endorse its conclusion (in the Commission communication entitled "Coherent Framework for Building Trust in Digital Single Market for E-Commerce and Online Service") that "The mechanisms to stop abuse …must … be made more efficient, within a framework which guarantees legal certainty, the proportionality of the rules governing businesses and respect for fundamental rights… In view of the growing volume of statutory and case-law in the Member States, it now appears necessary to set up a horizontal European framework for notice and action procedures". The Premier League would support such a harmonised statutory NTD system across the EU, providing it is sufficiently certain and robust to give copyright owners an effective solution to the issue of their copyright being infringed online.
For online infringements of intellectual property rights we would propose a statutory NTD system with the following features:
It is noteworthy that in the field of internet platforms used for the sale of counterfeit goods the relevant intermediaries were able to agree to a system incorporating all of the above-listed features, in the May 2011 Commission-sponsored Memorandum of Understanding aimed at reducing the sale of counterfeits via e-commerce platforms ("MoU"). We consider that there is no reason why similar obligations could not be introduced by way of a statutory system that applied not just to internet platforms facilitating the sale of counterfeit goods, but also to internet platforms and intermediaries facilitating the making available of pirated content.
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(b) Counter-notices
We consider that a DMCA-type system would work best, with the following features:
(c) Effectiveness over time ('take down and stay down')
Clearly the effectiveness of the takedown regime is dependent on content, once taken down, remaining 'down' permanently. The Premier League deals with a very high volume of illegal content online and expends significant resources monitoring the material and attempting to have it taken down. This would be subject to the balancing mechanisms described above, eg. denying rights owners' access to NTD where they have made careless notifications.
Repeat infringements
Clearly where the particular content that has been removed is subsequently allowed back up, this reduces the benefit of the original takedown. The effect is the same where another user is allowed to post the same content subsequently.
Repeat infringers
Where any Content Supplier has been the subject of a certain number of take-down notices served on a particular intermediary, the intermediary should suspend that Content Supplier's account for a set period. Further attempts by that Content Supplier (verified by address or IP address) to use the intermediary's services should be prevented, as was agreed at para 35 of the MoU.
Similarly, as outlined above, intermediaries should not be facilitating any Content Supplier who does not themselves operate an NTD process, and should therefore be under an obligation to cease receiving content from (or, as appropriate, stop providing services to) such Content Suppliers.
Filtering
The intermediaries should also be obliged to operate automatic filtering methods within their technical capabilities based on the material for which they have previously received takedown notices. The most effective way of preventing repeated infringements (either relating to particular content or particular users) will be a structure through which rights owners interact with intermediaries to provide them with information to help identify infringing material. YouTube and DailyMotion, for example, both offer tools of this nature.
6. Duties of care for online intermediaries
As discussed above, the nature of the mere conduit/caching/hosting safe harbours is such that it is in intermediaries' interests not to monitor content passing through their network for third-party IP infringements, as this would mean they would lose the benefit of the safe harbour and give rise to potential liability should they fail to remove or disable the content. As held in L'Oreal SA and others v eBay and others [2009] EWHC 1094 (Ch), once intermediaries take an active role in relation to the data stored, the intermediary risks losing the benefit of the exemption.
However, intermediaries are in the best position to carry out such active monitoring, and accordingly to ensure that infringing material is removed proactively, before the intermediaries' services are used to facilitate IP infringement, rather than some fraction being removed reactively, after the relevant rights-owner identifies the infringements. It will often be possible for such monitoring to be undertaken on an automated basis, at minimal cost to the intermediary.
In particular, Article 15 of the E-Commerce Directive creates uncertainty as to the level of specific monitoring that Member States are able to impose on intermediaries.
Where technology permits, the proposed obligation would be on the intermediary to take proportionate steps to prevent repeated infringements relating to material which has previously been taken down or by infringers who have previously been required to take material down.
This would operate in conjunction with rights owners' notification tools which enable intermediaries to share the work involved with the rights owners, and for content to be notified in advance so as to enable automated take-downs. YouTube's Content ID system is an example of a technical solution through which the intermediary and the rights owner collaborate to effect automated take-down of copyright-infringing material.
There is a strong argument that the combination of strict liability for infringing material, with harmonised and effective NTD tools and a duty of care to take proportionate steps to prevent repeat infringements, subject to available technology, would strike the correct balance between rights owners and intermediaries.
7. General comments
When dealing with online infringement of our rights, the Premier League typically hears from intermediaries and platforms that they are not responsible, but that we should pursue the original Content Suppliers (that is, the 'streamer', or the person who uploads the clip). However, the same intermediaries are unable to provide robust identification of the relevant Content Suppliers, and often refuse to take down the relevant infringing material. This is a core problem that the Premier League comes across time and again.
In order to obtain relief the rights owner is then forced to issue proceedings against the intermediary. Even where the intermediary is very clearly involved in the provision of the infringing content, litigation can be very expensive and take years, particularly given the regularity with which cases in this area are being referred to the CJEU.
The court system cannot be the default solution for dealing with online infringements. With technology changing so quickly and the massive proliferation of infringements, it is completely impractical to rely on court proceedings for relief. Obtaining judgment months (or years) after issuing a claim will cannot be effective since a new technology may be in place in a matter of weeks. The only workable solution is a robust and quick NTD system, mandatory for all intermediaries (broadly defined).
On this point we note the comments of the CJEU in UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and another, C-314/12 that, given the E-Commerce Directive's objective is to guarantee rights owners a high level of protection, it is clear that where any internet service provider grants access to its network to a Content Supplier, making the transmission of the infringement possible, they are "an inevitable actor" in the transmission, and accordingly should be considered "an intermediary whose services are used to infringe a copyright or related right" within the meaning of the directive.
Current NTD systems are inconsistent and not always offered. In many cases the takedown is too slow to be effective (especially in relation to live sport), and there is little to prevent the same material being reposted, requiring rights owners to play 'whack-a-mole' with the infringing content.
Rights owners such as the Premier League require a robust system under which intermediaries are forced to comply with a harmonised and effective NTD system, or else face liability for the infringements. Similarly, intermediaries should be compelled to provide verified identification of their relevant suppliers or Content Suppliers where an allegation of infringement is made. Where they are unable to verify contact details (ie an individual or existing company's name and address), the relevant Content Supplier's account should be suspended. Often domain name registrants or Content Suppliers use proxy or VPN systems to hide their identity. A key pillar of any effective liability regime will be the ability for rights owners to find out the real and verifiable identify of suppliers.
The best NTD system from the Premier League's point of view would be one operated by rights owners, with appropriate safeguards against misuse by rights owners such as sanctions for incorrect takedowns, and appropriate requirements for declarations of ownership in the material, etc. Failing this, NTD tools operated by intermediaries should at least be of standard form, easy to use, available 24/7 and result in the automatic immediate removal of the material, as discussed above. Considered in the context of time-sensitive content such as live sport, real-time take-down tools are absolutely vital, and takedown that takes longer than the currency of such content will be useless.
Intermediaries should be obliged to take proportionate steps, using available technology, to avoid repeat infringements relating to the same material, and to identify and block/suspend repeat offenders.
The key requirement, from the Premier League's point of view, is that everyone involved with making available infringing material online, at whatever 'stage', is liable for the infringement unless they take the material down immediately upon receipt of an appropriate notification, and provide details of their Content Supplier. The liability of all classes of intermediary should be sufficiently clear to avoid lengthy litigation with potential references for clarification to the CJEU, to ensure the liability regime keeps pace with changes in technology.
7 December 2015
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