世界知识产权组织-企业对企业数字版权和内容相关纠纷的替代纠纷解决机制（英）-2021-86页_8mb

Summary of Alternative Dispute Resolution Mechanisms for Business-to-Business Digital Copyright- and Content-Related Disputes

Core Content

This report presents the findings of the WIPO-MCST survey on the use of Alternative Dispute Resolution (ADR) mechanisms for Business-to-Business (B2B) digital copyright- and content-related disputes. It aims to provide a factual understanding of how ADR is currently applied and its potential in this evolving field, with a focus on cross-border and international disputes.

The report is part of WIPO's efforts to support the development of an effective and fair environment for the recognition, protection, and compensation of creators' rights in the digital market. It highlights the increasing importance of ADR in the creative industries, especially given the challenges of traditional litigation in addressing digital content disputes.

Main Viewpoints

• ADR as a Viable Alternative: ADR mechanisms such as mediation, arbitration, and expert determination are increasingly seen as suitable alternatives to court litigation, especially in digital copyright disputes. These mechanisms are preferred due to their affordability, speed, confidentiality, and sectoral expertise.

• Digital Content Market Growth: The global digital content market is valued at USD 2.4 trillion (PwC, 2019), with content creation and consumption growing rapidly. However, this growth is accompanied by rising disputes, particularly regarding infringement, licensing, and remuneration.

• Dispute Characteristics: The survey identified several sectors where B2B digital copyright- and content-related disputes commonly occur, including:

  • Advertising
  • Animation
  • Broadcasting
  • Films
  • Database protection
  • Books and publishing (including e-books)
  • Mobile applications
  • Musical works and sound recordings
  • Photographs
  • Software
  • Television formats
  • Video games

• Nature of Disputes: Disputes are often non-contractual and involve issues such as:

  • Whether valid rights exist and who owns them
  • Infringement by unauthorized third parties
  • Licensing and remuneration for the use of protected content

• Preferred Remedies: The most common remedies sought include damages and royalties, followed by declarations of infringement or non-infringement, and takedowns. Settlements are frequent, especially in non-contractual disputes.

• Dispute Resolution Mechanisms: While court litigation is still the most common method, notice and takedown is the most frequently used for non-contractual disputes. ADR mechanisms, including mediation and arbitration, are gaining traction, especially through online dispute resolution (ODR) tools like online dockets and videoconferencing.

• Survey Results: The survey received responses from 997 participants across 129 countries, with a majority being legal practitioners in small and medium-sized law firms. 64% of respondents concluded B2B digital copyright- and content-related contracts, with software licensing being the most common subject matter.

Key Information

Respondents' Perceptions

• ADR mechanisms are generally perceived as suitable for resolving B2B digital copyright disputes.
• Cost and speed are the top priorities for dispute resolution.
• Quality of outcome and enforceability are also highly valued.

Trends and Improvements

• Increased Use of ADR: There is a growing trend towards the use of ADR, especially expedited arbitration, expert determination, and customized ADR procedures.
• Need for Standardization: Respondents emphasized the need for standardized, tailored, and specialized rules and procedures for ADR.
• Role of Online Platforms: Online content-sharing service providers (OCSSPs) are increasingly implementing internal redress mechanisms, including human review and notice and takedown procedures.
• Legislative Support: Several jurisdictions, such as the US (DMCA) and the EU (DSM Directive), have included provisions that encourage the use of ADR in copyright-related matters.

Future Opportunities

• The development of specialized ADR procedures tailored to digital content disputes could significantly improve the efficiency and fairness of dispute resolution.
• International and neutral ADR providers are seen as crucial for resolving cross-border disputes.
• ODR platforms and digital tools are becoming more integral to the ADR process, offering accessibility, transparency, and neutrality.

Conclusion

The report underscores the growing need for ADR mechanisms in the context of B2B digital copyright- and content-related disputes, driven by the global nature of the digital content market and the limitations of traditional litigation. It also highlights the potential for ADR to become more widely adopted, especially with the support of international legislation and the development of specialized procedures. The findings suggest that ADR can offer a more effective, affordable, and equitable solution for resolving such disputes in the digital age.