WIPO ADR for Digital Copyright and Content Disputes

The WIPO Arbitration and Mediation Center provides procedural advice and case administration to help parties resolve disputes arising in the digital copyright and content environment, without the need for court litigation.

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Digital Copyright and Content Disputes

Disputes related to copyright and content in the digital environment comprise a wide variety of issues. Such disputes can involve complex legal, commercial or management issues, and given the cross-border nature of the internet, these disputes often involve multijurisdictional litigation with a diversity of parties, including users of copyright and content.

The WIPO Center has engaged with stakeholders in the digital copyright and content environment to provide effective Alternative Dispute Resolution (ADR) procedures. ADR procedures prioritize time- and cost-efficient dispute resolution, while aiming to preserve business relationships.

ADR procedures allow parties to choose a mediator, arbitrator or expert with legal and technical expertise in digital copyright and content. They also provide a neutral forum in which disputes can be resolved through a single procedure. Moreover, ADR procedures can be set up in a way to allow for efficient enforcement of the outcome.

  • advertising
  • animation
  • cinematographic works
  • databases
  • distribution agreements
  • dramatic works
  • film-coproduction
  • image rights
  • infringements
  • licensing agreements
  • literary works
  • marketing agreements
  • mobile apps
  • musical works
  • photographic work
  • publishing
  • software
  • TV formats
  • user generated (uploaded) content
  • video/online games
  • authors
  • broadcasters
  • creators
  • CMOs
  • internet service providers
  • music streaming platforms
  • online content sharing service providers (OCSSPs)
  • performers
  • phonogram producers
  • platform users
  • television and media companies
  • video streaming platforms (video-on-demand, OTTs)

WIPO ADR Services for Digital Copyright- and Content-Disputes

The WIPO Mediation, (ExpeditedArbitration and Expert Determination Rules are well suited for digital copyright- and content-related disputes. The WIPO Center also offers tailored WIPO ADR options that can be used to facilitate contract negotiation and dispute management; these tailored ADR options are set out in further detail below.

Some national legislations encourage parties to negotiate access to content and to distribution channels with the help of a third party (i.e., a mediator) when they are having difficulties reaching an agreement. Once licenses are in place, parties are encouraged to use ADR to resolve disputes concerning transparency obligations and contract adjustment, among others.

Parties can benefit from the use of specialized ADR mechanisms, such as WIPO mediation and arbitration, to resolve the following types of disputes:

  • negotiation of licensing agreements for distribution of content in video-on-demand platforms
  • breach of scope of licensing terms
  • existing licensing terms that do not include new distribution channels
  • existing licensing terms that include a transparency obligation by online platforms to right-holders regarding the exploitation of works and revenues generated
  • adjustment of existing licensing terms concerning remuneration from online platforms to right-holders
  • criteria to determine tariffs between CMOs and right-holders
  • determination of reasonable remuneration terms between online platforms and right-holders
  • determination of ownership of unpaid/ unclaimed royalties by CMOs or online platform
  • ownership over software improvements or updates in software development agreements
  • delivery and quality of works and/or content in film co-production or advertising agreements
  • determination of disputes related to the blocking/removal or reinstatement of works or content from a platform due to copyright infringement/non-infringing use.

1. We, the undersigned parties, hereby agree to submit to mediation in accordance with the WIPO Mediation Rules the following dispute.

The dispute concerns:

[The following sample descriptions of the dispute could be used by parties when defining the scope of the dispute.]

1.1 The negotiation/determination of the terms of a license relating to [specify works and/or content] (including, determining whether [name of party] already holds a license for its use of the repertoire works in certain territories).

1.2 Whether the use of [specify work and/or content] [or] [content] falls within the scope of the license.

1.3.1 Whether the scope of the license covers licensing through [specify digital distribution channels]. 1.3.2 The amount and level of royalties to [name of party] due to exploitation of [specify works and/or content] in [specify distribution channels].

1.4 The accuracy of data in usage reports (including reproductions and time reproduced, downloads, digital sales, geographical scope) for the purposes of remuneration.

1.5 The appropriate level of remuneration for the exploitation of the [specify works and/or content] licensed by [name party] to [name party] following the remuneration previously agreed by the parties.

1.6.1 The amount of the licensing revenues collected by [name, e.g., CMO] and the distribution to [name, e.g., right-holder].

1.6.2 The share of revenues corresponding to [name, e.g., CMO] and [name, e.g., CMO, producers, composers, film directors, writers, musical performers and actors] from [specify works and/or content].

1.7 The level of tariffs to be applied by [name, e.g., CMO] to [name, e.g., right-holder] corresponding to [specify works and/ or content].

1.8 The level of reasonable remuneration terms to be paid by [name, e.g., platform] to [name, e.g., right-holder] [including past and future periods].

1.9 Who is entitled to payment of unpaid/ unclaimed royalties from [specify works and/or content] by [name, e.g., CMO, online platform].

1.10 Ownership over improvements or updates of software deriving from [specify software development agreement].

1.11 The level of adequate performance of [specify works and/or content] delivered by [name party] to [name party] under the [specify film co-production or advertisement agreement].

1.12 Whether [specify works and/or content] should be blocked/removed or reinstated from [name platform] due to copyright infringement/ non-infringing use [and payment of damages].

2. The appointment of the mediator shall take place in accordance with the procedure set out in Article 7(a) of the WIPO Mediation Rules.

3. The place of mediation shall be [specify place]. The language to be used in the mediation shall be [specify language].

We, the undersigned parties, hereby agree that the following dispute shall be referred to and finally determined by arbitration in accordance with the WIPO Arbitration Rules.

[The following sample descriptions of the dispute could be used by parties.]

1. The arbitral tribunal shall have jurisdiction to finally settle the terms of a license relating to [specify works and/or content] (including determining whether [name of party] already holds a license for its use of the repertoire works in certain territories) (including settling the disputed terms and any issues that are necessary to settle the disputed terms resulting in a full and binding license to be entered into by the parties).

[Additional optional specifications: The parties agree that copyright infringement will not be raised as an issue in the arbitration and the arbitral tribunal shall not have jurisdiction to consider or decide issues as to the subsistence or infringement of copyright.

Party B agrees that, for the purposes of this arbitration, it shall not advance any case that involves arguments to the effect that certain instances of use of [define works] do not require a license.

The parties undertake to enter into and be bound by the license in the form settled by the arbitral tribunal.]

2. The arbitral tribunal shall have jurisdiction to finally settle whether the use of [specify work and/or content] [or] [content] falls within the scope of the license.

3.1. The arbitral tribunal shall have jurisdiction to finally settle whether the scope of the license covers licensing through [specify digital distribution channels].

3.2. The arbitral tribunal shall have jurisdiction to finally settle the amount and level of royalties to [name of party] due to exploitation of [specify works and/or content] in [specify distribution channels].

4. The arbitral tribunal shall have jurisdiction to finally settle whether the data in usage reports (including reproductions and time reproduced, downloads, digital sales, geographical scope) is accurate for the purposes of remuneration.

5. The arbitral tribunal shall have jurisdiction to finally settle the level of appropriate remuneration for the exploitation of the [specify works and/or content] licensed by [name party] to [name party] following the remuneration previously agreed by the parties.

6.1. The arbitral tribunal shall have jurisdiction to finally settle the amount of the licensing revenues collected by [name, e.g., CMO] and the distribution to [name, e.g., right-holder].

6.2. The arbitral tribunal shall have jurisdiction to finally settle the share of revenues between [name, e.g., CMO] and [name, e.g., CMO, producers, composers, film directors, writers, musical performers, and actors] from [specify works and/or content].

7. The arbitral tribunal shall have jurisdiction to finally settle the level of tariffs to be applied by [name, e.g., CMO] to [name, e.g., right-holder] corresponding to [specify works and/or content].

8. The arbitral tribunal shall have jurisdiction to finally settle the level of reasonable remuneration terms to be paid by [name, e.g., platform] to [name, e.g., right-holder] [including past and future periods].

9. The arbitral tribunal shall have jurisdiction to finally settle who is entitled to payment of unpaid/unclaimed royalties from [specify works and/or content] by [name, e.g., CMO, online platform].

10. The arbitral tribunal shall have jurisdiction to finally settle who owns improvements or updates of software deriving from [specify software development agreement].

11. The arbitral tribunal shall have jurisdiction to finally settle the level of adequate performance of [specify works and/ or content] delivered by [name party] to [name party] under the [specify film co-production or advertisement agreement].

12. The arbitral tribunal shall have jurisdiction to finally settle whether [specify works and/or content] should be blocked/removed or reinstated from [name platform] due to copyright infringement/non-infringing use [and payment of damages].

The arbitral tribunal shall consist of [a sole arbitrator/three arbitrators]. The place of arbitration shall be [specify place]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute shall be decided in accordance with the law of [specify jurisdiction].

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The WIPO Center, in collaboration with copyright stakeholders, has adapted the WIPO Expert Determination Rules as a global procedure to reflect best international practices for the resolution of user-uploaded content disputes by OCSSPs.

Users can rely on applicable copyright exceptions or limitations (quotation, criticism, review, use for the purpose of caricature, parody or pastiche) when uploading and making available in an OCSSP the content in issue.

The remedies available as a result of the EDUUC procedure are limited to blocking/disabling and/or removal of the content or reinstatement of the content that had been blocked/disabled and/or removed.

In a pilot phase, the WIPO Center will cooperate with Pex to resolve through and adapted version of WIPO EDUUC user uploaded content disputes. The Rules and the list of experts will be published soon.

The WIPO Center makes available recommended contract clauses and submission agreements that parties can use to submit their disputes to ADR. Upon request, the WIPO Center provides procedural guidance to interested parties and organizations in the digital copyright and content environment. This includes advice on the drafting and adaptation of ADR clauses in contracts related to digital copyright and content and submission agreements, as well as helping to bring disputing parties to ADR.

The WIPO Center also organizes training and workshops on mediation, arbitration and related topics.

Where appropriate in light of the needs of the relevant stakeholders, the WIPO Center provides guidance in the establishment of adapted ADR frameworks, including Rules, fees and clauses, and provides administrative services thereunder.

To optimize dispute resolution in the digital copyright and content environment, the WIPO Center collaborates with relevant stakeholders and organizations. This may include organization of joint events and training, and establishment of adapted ADR frameworks.

The WIPO Center is available to collaborate with interested stakeholders.

In the digital copyright- and content sector, the WIPO Center collaborates in particular with WIPO’s Copyright and Creative Industries Sector.

Contact us

WIPO Arbitration and Mediation Center (Geneva)
34, chemin des Colombettes
1211 Geneva 20
Switzerland

T +4122 338 8247
F +4122 740 370

WIPO Arbitration and Mediation Center (Singapore)
Maxwell Chambers Suites
28 Maxwell Road #02-14
Singapore 069120

T +65 6225 2129
F +65 6225 3568

For additional information arbiter.mail@wipo.int