OUR DIGITAL FUTURE: A CROWDSOURCED AGENDA FOR FREE EXPRESSION
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CONTENTS
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ACKNOWLEDGEMENTS
Reilly YeoCommunity Engagement Specialist, OpenMedia
Thanh LamCommunity Outreach Assistant, OpenMedia
Meghan SaliCampaigns Coordinator, OpenMedia
(image) Social Media Share Images: Danielle Gannon
Photos:Alexis for Lindsaysdiet.com p.03 |
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EXECUTIVE SUMMARY AN AGENDA FOR FREE EXPRESSION THAT RESPECTS CREATORS, AND EMBRACES DEMOCRACY
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The 40,079 participants in our crowdsourcing tool, who came from an impressive 155 countries around the world [Image 1], felt urgency to craft a plan for a fair deal for users and creators. They felt this urgency in light of some of the worrying copyright and IP provisions being proposed in several regions,6 and in international agreements such as the Trans-Pacific Partnership (TPP)7 – a multinational trade agreement involving 12 countries in the Asia-Pacific Region, which account for nearly 40 percent of global GDP and about one-third of all world trade.8 Participants in our crowdsourcing initiative also joined over 3,000,000 supporters of diverse international civil society organizations who have expressed grave concerns about secrecy and censorship in the TPP.9 Image 1: Participants in our drag-and-drop crowdsourcing tool, by anonymized IP address
3 See “The Process” for more information on our consultation process. 4 See “Appendix: Methodology” for full results for the drag-and-drop crowdsourcing tool. 5 Total numbers from all OpenMedia actions on free expression include: stopthetrap.net ~ 112,145 signatures, ourfairdeal.org ~ 19,694 signatures, openmedia.org/froman ~ 22,867 signatures, openmedia.org/censorship ~ 141,130 signatures, stopthesecrecy.net ~ 161,026 signatures, openmedia.org/expression ~ 62,670 signatures, openmedia.org/letter ~ 912 supporters, who used our Letter to the Editor tool, openmedia.org/facetoface ~ 29,041 participants (with duplicate actions removed, the number of unique supporters is ~ 316,000) 6 Other notable examples of attempts to use copyright policy to censor the Internet include the U.S. Stop Online Piracy Act (SOPA), a bill pushed through by lobbyists who sought to criminalize alleged copyright infringement, force ISPs to block websites suspected of promoting online sharing, and even ban companies from conducting business with “blacklisted” websites. (theglobeandmail) Iterations of the Anti-Counterfeiting Trade Agreement (ACTA), an international intellectual property agreement, also included provisions which seek criminal charges for copyright infringement. 10 openmedia.ca
“On the Internet, free expression, creativity, education, public discourse and debate thrive like never before – The people of the world finally have a voice.” – Chris, Sweden
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THREE KEY RECOMMENDATIONS
Participants in our crowdsourcing process indicated strong support for those in the creative industries – a significant majority (67 percent) wanted to see creators receive at least 75 percent of the revenue from their work, and an amazing 89.2 percent of respondents noted that we should always give credit to the creator of a work when sharing.11 Given the strong beliefs of our community, our first recommendation focuses on the need to respect creators. We outline ways to respect creators by ensuring they have access to: new ways to share their work; to fair use/fair dealing; to any compensation resulting from copyright infringement; and finally, to a rich public domain. By first ensuring creators have access to the tools they need to create and share in the digital age, we can design a copyright regime that serves the needs of 21st century knowledge and culture creators.
When asked to rank a list of six priorities for copyright laws in the digital age, the majority of participants in our crowdsourcing process (i.e. 26,894 out of 40,079) selected “Protecting Free Expression” as their first priority. As such, in this report, to prioritize free expression we propose an agenda for copyright with four components: prevent censorship; protect fair use and fair dealing; promote access and affordability; and create clear rules to govern the sharing of knowledge and culture online. p.06 |
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3. EMBRACE DEMOCRATIC PROCESSES The results of our crowdsourcing process were clear: over 72 percent of respondents wanted to see copyright laws created through “a participatory multi-stakeholder process... that includes Internet users, creators, and copyright law experts.” We therefore strongly recommend that political leaders abandon closed-door processes like the Trans-Pacific Partnership (TPP), and instead focus on designing participatory, democratic and transparent forums for the creation of copyright laws that can keep pace with our rapidly changing technology and culture. We believe that by fostering the key elements of free expression in the digital age outlined above, we can truly unlock the potential of the open Internet to democratize knowledge and culture. There are undeniable challenges that come with a rapid shift to a new medium of expression; but what we’ve found is that, in contrast to stereotypes, Internet users are very respectful of the unique needs of creators and knowledge producers in the digital world. As digital technology is increasingly a driving force in the way we interact as a society, copyright rules will play a more fundamental role in our lives. Making rules that are fair, easily understood by everyday Internet users, and created with the input and approval of the many groups and people whose lives will be directly affected, is the best way to ensure that the digital future belongs to all of us.
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OUR POLICY AGENDA
1. No forced disconnections from the Internet for copyright violations; no three-strikes rules that could harm culture and knowledge creators, and everyday Internet users. 2. Protection for safe harbours, like those in Section 230 of the US Communications Decency Act, that allow creators to access new audiences / no intermediary liability for infringing content disseminated by third parties. 3. Notice-and-notice systems for preventing infringement, like that created by Canada’s Bill C-11, as opposed to notice-and-takedown systems. 4. Promotion and protection of Creative Commons – in takedown systems, no takedowns without adequate consideration of users’ rights and due process, and penalties for false infringement claims. 5. Clear process for creators to dedicate their works to the public domain. 6. Broad protections for fair use/fair dealing – in takedown systems, copyright holders required to take fair use/fair dealing provisions into consideration when issuing takedown notices. 7. Fair use/fair dealing exceptions for transformative commercial remixes; copyright exemptions for amateur and non-commercial remixes. 8. Reasonable, civil (not criminal) penalties for sharing copyrighted materials – civil liability geared towards compensation for culture and knowledge creators (i.e. warnings and fines, tied to reasonable copyright terms as in point 9). 9. Copyright terms focused on compensating creators during their lifetime, and enriching the public domain at their death. 10. No criminal penalties for DRM circumvention; no penalties for DRM circumvention to allow legal uses of content (i.e. circumvention of regional zone access protection); ensure vision-impaired Internet users are not prohibited from creating or format shifting their content. 11. Clear, simple copyright rules, designed to be accessible to the people theyare intended to serve. 12. Copyright rules created through an open, transparent & democratic process.
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(image) For more images of our ReMix This: A Copyright Cabaret event, head to pages 56–57. |
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THREE KEY RECOMMENDATIONS RESPECT CREATORS PRIORITIZE FREE EXPRESSION EMBRACE DEMOCRATIC PROCESSES p.10 |
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Recommendation One: RESPECT CREATORS
"Evidence shows that as users share and connect more directly with creators, the possibility for grassroots financing and distribution of cultural and knowledge production grows.” p.12 |
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In order to fully unleash the possibilities of the open Internet, there are two things digital policy must foster: the potential for Internet users to share and remix knowledge and culture quickly and easily on a global scale; and the potential for creators to access livelihoods not controlled by gatekeepers, the Big Media companies that have traditionally monopolized financing and distribution. These gatekeepers have the ability to create “winner-take-all” economies dominated by a few big celebrities in the creative and knowledge production fields. By contrast, the Internet allows for a much greater range of amateur and emerging artists to reach large audiences. While we are often led to believe that in the digital age, sharing and creativity are diametrically opposed, the right approach to copyright understands that these two things can be mutually reinforcing. Unfortunately, Big Media gatekeepers and their lobbying organizations, like the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA),1 have had a disproportionate influence over copyright policy in recent years, and have pushed forward the idea that Internet users pose an existential threat to creators and creative industries. But, as we explore here, evidence shows that as users share and connect more directly with creators, the possibility for grassroots financing and distribution of cultural and knowledge production grows. Similarly, as creative and intellectual works enter the public domain and can be freely shared, the field for cultural and knowledge production that builds on past experience and tradition gets infinitely richer. At its best, the Internet helps us return to the experiences and values we were likely encouraged to have as children: sharing and creativity. Our first recommendation is that we continue to nurture these values and experiences by respecting creators, and fostering a sharing-first culture that creates an atmosphere that is conducive to creativity. We can do this through a copyright agenda with four components: ensuring creators have access to new platforms; promoting approaches to copyright that allow creators broad scope for sharing and fair dealing / fair use; ensuring reasonable penalties for copyright infringement that prioritize compensation for creators; and finally, creating a rich public domain. p.13 |
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CREATIVE INDUSTRIES, TECHNOLOGICAL INNOVATION, AND THE SHIFT TO ONLINE DISTRIBUTION Past experience with technological innovation demonstrates the need to take industry claims about the harms caused by innovation with a grain of salt – one of the best examples comes from the 1980s, when there was a coordinated effort by the film industry to have the VCR prohibited. Then-head of the MPAA, Jack Valenti, told a House of Representatives Subcommittee: “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”2 As Forbes magazine points out, “Of course, home video (and later DVD) went on to become a hugely profitable delivery channel for movie studios. Far from decimating the industry, it grew profits, especially for studios like Disney with valuable back catalogs. It just goes to show, disruptive technologies can have different effects than you expect.”3 Now that more than a decade has passed since the shift to online music, studies have emerged challenging industry claims about the threat of this shift: piracy does not “kill” the industry and the negative impacts reported are either unfounded or exaggerated. A ground-breaking study by the London School of Economics (LSE) discovered three important counter-points to the music industry’s reactions to the online shift: 1) that though lobbying organizations claimed otherwise, the music industry was doing reasonably well, and that much of their data was misleading; 2) that declining sales of recorded music should be explained not just by file-sharing but also by decreasing disposable household incomes for leisure products and other shifts in patterns of music consumption; and 3) that increasing revenue from live performances and growing digital revenue, including from streaming services, were offsetting the declining sales of recorded music (Figure 1).4
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Not only do streaming services bring in increased income for the industry (suggesting that if the music industry had adapted to the digital environment earlier, rather than investing in lobbying to protect a dying business model, record companies could have enjoyed much earlier growth in the sector)5 these services also seem to help curb piracy quite dramatically.6 And the real effects of piracy are open to a very lively debate: a 2013 report by the European Commission showed that piracy did not displace legal music purchases in digital format, and that the majority of music consumed illegally would not have been consumed if it was not freely available.7
We also know that most creative industries are doing quite well: despite the MPAA’s claims about the devastation of online piracy, Hollywood achieved record-breaking global box office revenues of US$35 billion in 2012, a 6 percent increase over 2011. Though revenue from DVDs declined in the decade from 2001 to 2010, total global revenue increased by 5 percent.8 Similarly, in the publishing industry, though revenues from print book sales have declined, increased sales of eBooks have offset this, and despite the alarm about the “end of the book,” the rate of industry growth is not declining.9 The music industry, which has been hardest hit in terms of decline in traditional revenues (Figure 1) demonstrates not only growth in revenues from live performance, but also strong growth in digital revenues (Figure 2). These now account for more than a third of global music industry revenues and helped the music industry increase revenue year over year between 2011 and 2012, the first time since 1999 that industry revenue has grown.10 This growth has been predicated on innovations that deliver content to users in a format that is easy and desirable to them, something the older Big Media companies have neglected while instead focusing on efforts to suppress technological advances and protect their out-dated business models.11 4 www.lse.ac.uk p.5 5 www.lse.ac.uk p.5 7 ftp.jrc.es p.2 p.15 |
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Respect for Creators 1: ENSURE CREATORS CAN ACCESS NEW WAYS TO SHARE THEIR WORK The growth forecast for digital music revenues is all the morereason to ensure we get the business model for online musicservices right – that is, we ensure that it harnesses the possibilitiesof the open Internet for easier sharing and more creativity.Though labels are fighting a rearguard action that focuses on an“Internet users versus artists” frame, what we’ve found in the “OurDigital Future” process is that Internet users are very invested inrespecting creators. In fact, Internet users who participated in ourcrowdsourcing process would very much like to see creatorsget a greater share of the revenue generated by their work: (image) Overall, 92.5 percent of respondents to a question about howmuch digital music revenue should go to the artist, believe thatat least 50 percent of the revenue should go directly to the artist;67 percent wanted to see more than three-quarters of therevenue go directly to the artist. The “Our Digital Future” processprovides evidence that Internet users believe in a businessand revenue model where artists and content creators are fairly compensated. p.16 |
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(image) SOURCE: “The New Economics of the Music Industry,” by Steve Knopper, October 25th, 2011, rollingstone.com
We also see new possibilities for creators to benefit in the digital environment, and insist that copyright law should protect those possibilities. According to research done by Rolling Stone magazine, distribution through CDs or the iTunes store should both result in about the same royalties to the artist – a typical record contract gives the artist approximately 16 percent of sales12. However, in the offline market, label shave been cutting into artist’s royalties for years, “with deductions marked ‘free goods’ (usually 10 percent of the artist’s royalty) and ‘packaging’ (usually 25 percent)” dropping the royalty down to about 11 percent13 These deductions don’t apply to digital sales – so there is reason to believe that in the iTunes store an artist inches closer to the revenue-split ratio our crowdsourcing participants would like to see. Though in this scenario, the label still takes the majority of the revenue: out of the $1.29 paid for a song, “a grand total of 60 cents goes to Sony to pay for marketing, publicity, videos, executive salaries and obviously, profit.”14 And this is all assuming that the artist has paid off their debt to the record label for expenses like videos, tour support, etc. By contrast, though there are very legitimate concerns about the small amount of royalties per play15 on a streaming service like Spotify, the amount of royalties paid to the artist relative to the label looks closer to what our crowdsourcing participants wanted (Figure 4). And as the plays accumulate so does the revenue to the artist. Spotify also aims to grow the amount it gives to both niche and breakthrough indie bands, creating new sources of revenue for artists that may have had a hard time competing in the pre-digital era (Figure 5). (image) SOURCE: “How is Spotify contributing to the music business?” spotify.com As Rolling Stone points out, the artists that do the best in terms of the percentage of revenue that they can keep, are those who choose to go without a label: “Of course, many artists don’t want to share nearly half of their revenues with a major label like Sony, which is essentially a middleman. Before the Internet, and stuff like ProTools, an artist had to sign with a label even to be heard. That’s obviously no longer true. Today, an artist can pay a service like TuneCore to be included in the iTunes Store. At that point, after Apple takes its cut, the entire 90 cents goes to the artist.”16 Distribution channels like iTunes, or the even more open platform (in that users can upload their videos directly) YouTube, are creating new possibilities for artists to eschew labels and keep more of their revenues for themselves. Rolling Stone cites the case of “video kings” OK Go, who chose to split with their longtime label EMI. The band’s blog announcing the departure reads: “OK Go has struck out on its own. The band has left the EMI family of corporations to form their own enterprise, a homemade upstart called Paracadute [...] 13 ibid., p.5 14 ibid., p.2 p.17 |
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Paracadute is really just a way for the boys to continue doing what they’ve always done. Which is whatever they want. Being OK Go just got a little bit easier.”17 This also leaves the band much better positioned to bring in significant revenue from their YouTube videos. Rolling Stone quotes Eric Garland, the CEO of an online metrics company, who claims: “I know individual artists who make tens of thousands of dollars a month on YouTube [...] And I know of individual artists who make more money on an individual basis from YouTube than they do from iTunes.”18 Online platforms not only allow artists to cut out the label middlemen – they have also allowed for experiments in letting fans set their own price for content. Lead singer Thom Yorke of the UK band Radiohead found that making their album “In Rainbows” available for whatever fans believed to be appropriate actually increased sales: “In terms of digital income, we’ve made more money out of this record than out of all the other Radiohead albums put together, forever — in terms of anything on the Net. And that’s nuts.”19 Other big name entertainers to start using technology to their advantage include comedian Louis C.K., who made his comedy special available for stream and download for just US $5, in an experiment he considered a huge success: “As of Today, we’ve sold over 110,000 copies for a total of over $500,000. Minus some money for PayPal charges etc, I have a profit around $200,000 (after taxes $75.58). This is less than I would have been paid by a large company to simply perform the show and let them sell it to you, but they would have charged you about $20 for the video. They would have given you an encrypted and regionally restricted video of limited value, and they would have owned your private information for their own use. They would have withheld international availability indefinitely. This way, you only paid $5, you can use the video any way you want, and you can watch it in Dublin, whatever the city is in Belgium, or Dubai. I got paid nice, and I still own the video (as do you). You never have to join anything, and you never have to hear from us again.”20 In both these cases, there was still significant file-sharing and unpaid downloading of these works – but the artists considered them a success regardless.21 Online crowdfunding platforms like Kickstarter have also allowed artists like Amanda Palmer – an advocate of alternative, more negotiated and consensual compensation arrangements between artists and fans22 – to vastly exceed targets for funding projects like records, books, and tours.23 And as business models in the music industry change, particularly as live performance revenue increases (see Figure 1 in this chapter), many artists may find that the benefits of increased exposure from free sharing of their workout weigh the costs of foregone revenue from digital sales - as did Counting Crows, who released their album for free via BitTorrent, commenting: “It’s not just about getting music to the people who would buy it anyway – even though that is, of course, very good – the hardest thing to do is make new fans.”24 This is not to claim that the current digital era is perfect – direct distribution to fans and crowdfunding are much easier for celebrity artists with name recognition value, while emerging artists still struggle. As Nicolas Suzor and Dan Hunter point out, “Since the 1990s the copyright systemh as been made more and more onerous – but most artists haven’t been getting any richer.”25 In Australia, for example, the majority of people who identify as professional artists make less than A$10,000 per year from their primary creative activity.26 Alternative proposals like a Creative Contribution,27 or a basic income,28 are worthy of serious consideration to overcome the challenge of financial security for artists – a challenge that long precedes the digital age. The important thing to keep in mind when considering the online era is that we don’t know what the business models of the future will look like: as Amanda Palmer says “The truth is there is no next model. Show me 1,000 talented musicians, each with a unique style and personality, and I’ll show you 1,000 ways to make a career in music… there is no longer an off-the-shelf solution.”29 The uncertainty surrounding future business models, and the possibilities of the open Internet to bring the creative industries closer to what our crowdsourcing participants wanted (i.e. a majority of revenue going to artists) lead us to draw two conclusions with regards to copyright and free expression: that real protection for safe harbours is needed, and that “three-strikes” style copyright policy will be harmful to creators. “Safe harbours” are online service providers, such as YouTube, which under the US Communications Decency Act’s (CDA) Section 23030 are exempt from liability for copyright infringements by third parties who use their services. They are often used by emerging artists that don’t yet have access to distribution channels like television and radio – safe harbours provide the artist with a way of reaching audiences that would have been impossible in the pre-digital era. Protections for safe harbours like those outlined in CDA Section 230 are therefore crucial. Current copyright regimes, however, compromise these safe harbours by permitting dragnet-style takedowns of content, which often sweep up legitimate uses and reuses of content by artists, and disable their access to crucial audiences, as we will explore further in the next section. p.18 |
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The crucial nature of Internet access to artists in a digital era also highlights the folly of three-strikes rules, where repeat copyright infringers would have their Internet access disabled. Given the possibility for unknowing infringement, for false infringement claims, and the reality of copyright protections that seem overly broad and detrimental to thes haring of knowledge and culture, we strongly recommend against three-strikes rules. Less than 2 percent of our crowdsourcing participants agreed that users should be disconnected from the Internet for copyright infringement.31 Given the results of the “Our Digital Future” project, we support London-based human rights organization Article 19’s Principle 8 on free expression and copyright in a digital age: “Disconnection from access to the Internet on grounds of copyright is always a disproportionate restriction on the right to freedom of expression.”32 In countries like France where three-strikes policy has been tried, it has ultimately been seen as overly expensive, bureaucratic, and ineffective, and has been abandoned in favour of relatively small fines instead.33 Unfortunately, however, leaked drafts of the TPP suggest that the chapter on intellectual property would seek to impose three-strikes rules on the 12 countries currently negotiating the agreement.34 Because three-strikes rules are just as likely to target creators as they are to target regular Internet users, and remove them from what is increasingly a crucial means of making a living as an emerging artist, these rules should be rejected in favour of civil liability that focuses on compensating creators (see the section “Respect for Creators 3” in this chapter for further discussion of this issue). Internet Voice “I want to be able to dictate the terms of my own work; not hand everything over to a publisher [...] I don’t want [fans] to have to worry about their [fan fiction] sites or stories being taken down simply because publishers get hurt over money they’re not making on something that was my intellectual work to begin with. These laws were originally put in place to protect the rights of the artist, yet in these days, it’s only the producers/publishers/etc. that benefit.” – LaTora Prince 17 okgo.net 21 www.nme.com 22 www.ted.com 24 mashable.com 29 www.nme.com 30 www.eff.org 31 See “Respect for Creators 3: Ensure Reasonable Penalties for Copyright Infringement – Those that Prioritize Compensation for Creators” in this chapter for further results from this question. 33 papers.ssrn.com (layperson’s summary: arstechnica.com) 34 tppinfo.org p.19 |
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Respect for Creators 2: PROMOTE APPROACHES TO COPYRIGHT THAT ALLOW CREATORS BROAD SCOPE FOR SHARING AND FAIR USE/FAIR DEALING Box 1: Creative Commons Licenses Creative Commons (CC) is a non-profit organization that creates its own licenses to provide a more balanced approach to copyright. By creating flexible licenses, CC gives content creators and users more freedom when it comes to sharing and remixing works. The licenses serve as a positive alternative to current copyright rules, which focus on punishing acts of sharing, as opposed to supporting online collaboration. By using CC licenses,35 you, as a creator of content, can make it clear that you would like to be acknowledged, and communicate ways you would like the public to reuse your work – you can choose to permit derivatives and commercial uses, and can insist that any reuses of your work are also themselves CC licensed. Not only do these licenses let Internet users know what rights the creator has given them, they also encourage innovative knowledge reproduction and distribution, making our online culture richer and more interactive. As noted above, changing business models mean that sharing work freely is often desirable for knowledge and culture creators - hence the rapid growth in the use of Creative Commons licenses, from 50 million in 2006 to over 450 million in 2011.36 While Creative Commons licenses allow for a great degree of customization and flexibility (see Box 1), the fundamental component of all the licenses is attribution, or giving credit for the original creation. This was also a principle of sharing online that the participants in “Our Digital Future” strongly supported – 89.2 percent of 9,020 respondents to the question in our drag-and-drop tool said that when using the content of others online, we should always give credit to the creator of the work.37 As the Authors Alliance, which represents the interests of authors who favour accessibility and dissemination, notes, attribution serves not only the author’s or creator’s interest, “but also the reading public’s interest in knowing whose works they are consuming and society’s interest in an accurate record of the intellectual heritage of humankind.”38 Yet again, we see evidence that Internet users want this kind of healthy culture of sharing – the majority of users in our crowdsourcing process want to ensure that creators receive credit. One challenge with regards to Creative Commons and current copyright law is that notice-and-takedown regimes often rely on automation: many copyright holders use catch-all style systems, such as YouTube’s ContentID (see Box 2) or the MPAA’s list of infringing terms, that result in creators who use Creative Commons having their works summarily removed from the Internet, and from their largest potential audience. For example, popular (and now defunct) torrent site isoHunt was forced to use a site-wide keyword filter provided by the MPAA, which included word combinations like “The Kingdom” and “The Heat.”39 Along with copyrighted works, this filter blocked content from independent artists like musician Elliot Wallace and film-maker Brian Taylor, whose CC licensed works triggered the overly broad & generic keyword filters. To quote Taylor: “My original material being blocked in the US hurts my chances of: being discovered, making money, making more art.”40 Companies like Microsoft use similar automated systems to send takedown notices to Google, removing links to their open source competitor OpenOffice,41 blocking access to one of the only real alternatives to their expensive software. p.20 |
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The scope of these types of claims is mind-boggling: Google receives requests to remove tens of millions of URLs each month.42 Even well-known Internet freedom and free expression advocates Corey Doctorow and Lawrence Lessig have been the targets of this kind of system. In Doctorow’s case, his novel “Homeland” was ordered taken down from Google by Fox, the copyright holder of a television show also called “Homeland.” Doctorow noted: “The DMCA makes it easy to carelessly censor the Internet, and makes it hard to get redress for this kind of perjurious, depraved indifference”.43 Box 2: YouTube’s ContentID System YouTube has been forced to put in place a ContentID system – a technology that scans videos for copyrighted content using reference files (movies, songs, etc) and then allows right holders to issue notices to either takedown, claim or block the allegedly offending content. As a result, users can have their videos removed even for having a song playing softly in the background that was picked up by the ContentID software. ContentID also makes no exceptions for fair use or fair dealing. As Ashkan Karbasfrooshan, owner of a popular YouTube channel called WatchModo that was targeted by an illegitimate takedown notice writes: “Having just been given access to ContentID to protect our own videos from copyright infringement, it was instantly clear once I logged in why there are so many false alarms. I personally feel that ContentID adds an impersonal element of anonymity that has led to a lack of common sense and civility. A robot can brand us as a rogue operation with no due process.”44 The system appears to be the result of Youtube obeying the problematic notice-and-takedown law, but like other copyright rules, it has the effect of censoring legal expression and content. The proliferation of dubious copyright claims is not just catching Creative Commons licensed works in a dragnet, it is also sweeping up other legitimate instances of shared copyrighted works, such as those protected under fair dealing or fair use. In Lessig’s case, one of his lectures was removed from YouTube after a takedown notice from Liberation Music, regarding clips of the song “Lisztomania” of which Liberation is the copyright holder. As the Electronic Frontier Foundation (EFF), which represented Lessig in the lawsuit he filed against Liberation, explains, this was a “classic example of fair use, [as] the clips were used to highlight emerging styles of cultural communication on the Internet.”45 Liberation Music settled with Lessig for an undisclosed amount, and also revealed their takedown system: they had allowed a single employee to use YouTube’s automatic ContentID system to start the takedown process, and then to threaten a lawsuit when Lessig challenged the takedown. The employee did not have a legal background, and did not actually review Lessig’s video before threatening a lawsuit.46 Liberation agreed to change this policy to include human review and fair use considerations, but clearly it is not reasonable to expect Internet users to take every single rights holder to court to force them to adopt what may be only a moderately better system. This is yet another strong piece of evidence that notice-and-notice style copyright regimes are much more respectful of creators. In a powerful article titled “Why I No Longer Give Away My Music for Free,” digital musician Bob Ostertag notes: “It is strongly in the interest of the big corporate labels to over-detect rather than under-detect. The result is a system in which the interest of the handful of superstars of the world in not missing out on a penny of their millions in royalties trumps the interest of the vast majority of musicians in getting their music heard.”47 37 See “Appendix: Methodology” for full results from this question. 45 www.eff.org 46 www.eff.org p.21 |
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Ostertag, who makes his income off of concerts and was licensing his recorded work under Creative Commons in order to reach new audiences, cites numerous instances of “netbots,” or automated takedown systems, unjustly removing the content of musicians who are “trying unsuccessfully to give away their music for free.”48 As he observes, these musicians have few resources, in terms of time or money, to fight unjustified takedown notices. The problem with putting in place an automated takedown procedure is, first, that these systems do not differentiate between true copyright infringement versus fair dealing, fair use or Creative Commons-licensed works that incidentally resemble copyrighted works. Second, these systems place an unfair burden on emerging artists to fight takedown notices and, as Ostertag notes, are a disincentive to using the Creative Commons. As Article 19 states in its principles on copyright and free expression: “Measures such as Creative Commons, whereby creators waive some of their rights in their works, allow greater access to culture for the wider public and should therefore be promoted.”49 Given the value of Creative Commons, and the harm that automated takedown procedures are doing to the creators who employ it (and/or fair use/fair dealing) the “Our Digital Future” project strongly favours notice-and-notice over notice-and-takedown. In light of the effectiveness of notice-and-notice systems50 (see Recommendation Two for a fuller discussion), the evidence clearly shows that they are superior to notice-and-takedown – particularly when takedown procedures rely on the impersonal, anonymous automated systems described here. Respect for Creators 3: ENSURE REASONABLE PENALTIES FOR COPYRIGHT INFRINGEMENT– THOSE THAT PRIORITIZE COMPENSATION FOR CREATORS When asked about penalties for copyright infringement, a majority of respondents to the question in the “Our Digital Future” tool (i.e. 71.2 percent of 10,245) selected either payment of a small fine (50 percent) or a warning and instruction about the laws surrounding copyright (21.2 percent). Less than 8 percent selected harsher penalties, like disconnection from the Internet (1.6 percent) or a fine ranging from $250 to $15,000 (5.5 percent). These results suggest that Internet users favour copyright regulations that emphasize education and compensatory damages – most Internet users we engaged are in favour of consequences for copyright infringement (including warnings or notices that, as we will demonstrate in Recommendation Two of this report, are effective at preventing repeat infringement). But, unsurprisingly, they would like to for ego unnecessarily punitive systems in favour of reasonable penalties. (image) p.22 |
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Though we’ve focused in this chapter mainly on the needs of creators in the cultural industries - i.e. musicians, filmmakers, etc. – the detrimental effects of copyright policy on knowledge creation are also strong cause for sober second thought before pushing ahead with excessively punitive copyright regimes, like that envisioned in the TPP. In 2013, in response to the suicide of Internet freedom advocate Aaron Swartz,51 hundreds of academic authors published over 1,500 links to their own copyright-protected material, in an awareness-raising act of civil disobedience.52 The fact that these authors were opening themselves up to penalties for copyright infringement highlighted the ways in which the current copyright system for digitized materials does not serve knowledge creators, who often do not retain a license or rights to share their own works.53 In fact, these creators must then pay archives simply to access the material that they produced.54 The disjunct between the creator and the rights-holder, who are often not the same person or entity, provides yet further justification for eschewing highly punitive systems – these could punish creators, like academic authors, for sharing their own work. As the Authors Alliance argues, these types of authors, and others who write not just for pay but also to make their work available to the broadest possible audiences, have not been well served by misguided efforts to strengthen copyright. These efforts have not resulted in meaningful financial returns to most authors, and have “unacceptably compromis[ed] the preservation of our own intellectual legacies and our ability to tap our collective cultural heritage.”55 We therefore join with our crowdsourcing participants in insisting that there be reasonable penalties for sharing copyrighted materials – this means civil, not criminal, liability, and civil liability geared towards compensation for culture and knowledge creators, not Big Media companies. We can see clearly in the case of academic publishing that copyright regimes are not designed with penalties that compensate creators in mind. In fact, as with three-strikes rules and automated takedown systems, creators can become the targets of copyright infringement penalties that unnecessarily impede the sharing of knowledge and culture. As Philippe Aigrain points out, “the effect of the recent evolution of copyright law, in the real world, is to concentrate power not in the hands of authors and artists, but in those of the stock owners of copyright.”56 Insisting that penalties should prioritize revenue for creators also has clear implications for copyright terms, as copyrights that extend beyond the life of the creator clearly have no impact on the compensation the creator receives. Therefore, as we will argue in the next section, these should be abolished in favour of a richer public domain of cultural works for creators to reference and remix. As participants in the “Our Digital Future” project suggested, a copyright regime that respects creators will be one that prioritizes reasonable penalties for infringement combined with maximal freedom to share, and to participate in creating an increasingly global digital culture. Internet Voice “Free expression is the glory of the Internet and the right of the people. As an author, I have a website with extracts of my books marked copyright. That’s enough. We display our work for people to see. If someone chooses to disregard this, they are outnumbered by the many who honour the system. No decisions of this magnitude should be negotiated secretly, nor should access be denied to the Internet. It is unreasonable to expect service providers to censor content and remove websites. Please listen to the people.”– June Birch, United Kingdom p.23 |
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Respect for Creators 4: FAVOUR A RICH PUBLIC DOMAIN OVER A LIMITED ONE When asked how long copyright terms should last, the majority of respondents to the question in “Our Digital Future” indicated that they do not want copyright to last beyond the death of the creator, with the majority at 53.3 percent indicating they believe copyright should last either 10 years (28.7 percent) or until the death of the creator (24.6 percent).57 Only 15 percent of respondents voted for a copyright term beyond the death of the creator, and less than 4 percent voted for the term length proposed in leaked drafts of the TPP or longer (i.e. the death of the creator plus 70 years).58 By voting for shorter copyright terms, the participants in “Our Digital Future” are voting for a richer public domain. The public domain is comprised of works that are not restricted by copyright and do not require a license or fee to use. Works can enter the public domain automatically because they are not copyrightable, can be designated in the public domain because they are being used under fair dealing/fair use provisions, canbecome part of the public domain because the copyright termhas expired, or can be made public domain by the creator/rights holder. As the Authors Alliance points out, the public domain maximizes the potential for creators’ works to be accessible - therefore, the process for dedicating works to the public domain should be easy and clear.59 The public domain is important not just because it allows creators to reach audiences – it also creates a vast store of works that creators can freely draw from and reuse. Whether works we likely consider as part of our common cultural heritage or folk tradition are in the public domain or not can have a very significant impact on creators. For example, for those in the English-speaking TPP countries, we can feel the realism of a film or television show where characters sing “Happy Birthday” at a birthday party - and the unreality of a scene in which they sing anything else. Yet in order to represent this everyday reality, creators currently need to pay royalties to Warner Brothers, which collects over US $2 million per year from a disputed claim to the copyright on the song.60 The existence of a public domain for cultural works like “Happy Birthday” has a significant impact on the ability of creators to reference and reuse works without incurring significant additional production costs, or running the risk of harsh penalties for copyright infringement. p.24 |
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Internet Voice “I want the rights of users to be protected. Format shifting of content should be protected by law. There should also be requirements to disclose when the major portion of content being sold is public domain.” – David The ability for creators to affordably represent, reference and remix our culture is not the only reason to support a rich public domain; worryingly, without provisions where works automatically enter the public domain after a reasonable time limit, the vast majority of recorded 20th century culture is lost as “orphan works,” and will likely be entirely inaccessible to creators.61 The majority of books, for example, go out of print shortly after their original publication, and are long forgotten by the time they enter the public domain – they will likely never be re-printed, and the limited copies in circulation will be difficult or impossible to access.62 For many other works, the copyright owner cannot be found, and/or their date of death is unknown, so uncertainty over their copyright status means they will never enter the public domain, in a regime where publishers, archivists, scholars, etc. are fearful of being held liable for copyright infringement of up to $150,000.63 As the Authors Alliance notes, “the specter of such crippling liability can chill even non-infringing and socially beneficial acts of authorship, dissemination, archiving, and curation” – yet another reason to ensure reasonable penalties for copyright infringement.64 The scale of the orphan works problem, and the diminishment of publicly accessible culture, have led dedicated advocates of the public domain like Mark Akrigg, the founder of Project Gutenberg Canada, which preserves and makes available public domain ebooks, to raise the alarm about the risks of the TPP and the proposed copyright term extensions in the leaked drafts.65 Participants in the “Our Digital Future” project join with librarians, archivists, scholars and others in rejecting exceedingly long copyright terms. Copyright terms have steadily increased in length since the creation of copyright; when copyright was first established in Britain with the Statute of Anne, it lasted just fourteen years.66 The first efforts to extend it by the booksellers were rejected on the grounds that they would make the public into “slaves” of the publishing industry, and lock up knowledge and science in “cobweb chains.”67 In this report, we join with the majority of our crowdsourcing participants in seeking copyright protection that focuses on livelihoods and protections for creators – and ends with their death. This strikes the appropriate balance between the needs of individual creators for compensation for their work, and the needs of the creative sector as a whole for cultural goods that are not locked away from the public. "The existence of a public domain for cultural works like “Happy Birthday” has a significant impact on the ability of creators to reference and reuse works without incurring significant additional production costs, or running the risk of harsh penalties for copyright infringement.” 57 For full results from this question, see “Appendix: Methodology” 58 https://www.eff.org/issues/tpp 59 This is a challenge in US copyright law www.authorsalliance.org. An opt-out rather than opt-in model for copyright would be one approach to solving this problem: www.law-democracy.org p.35 60 https://web.law.duke.edu/cspd/orphanworks.html abcnews.go.com 62 gutenberg.ca 63 web.law.duke.edu and www.ala.org p.25 |
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Recommendation two: PRIORITIZE FREE EXPRESSION The results of our crowdsourcing project demonstrate that participants value the principle of free expression above all other priorities for copyright. Copyright rules must safeguard freedom of expressionon line. There are four components top reserving free expression: preventing censorship; protecting fair use and/or fair dealing; promoting access and affordability; and creating clear andsimple rules to govern the sharing of knowledge and culture online. p.26 |
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Box 1: What is free expression? In defining free expression for the purposes of the “Our Digital Future” project, we were inspired by Article 19 of The Universal Declaration of Human Rights: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”1 Given the increasing importance of the Internet as a primary medium for free expression, the United Nations Human Rights Council, along with more than 80 co-sponsoring states, in June 2014 adopted a resolution on the Internet and Human Rights. This resolution “recognises that the global and open nature of the Internet is a driving force in accelerating progress towards development, including the implementation of the right to education. It also calls upon states to address the digital divide and to promote digital literacy and access to information on the Internet.”2 It recognizes that the same rights that people have offline, particularly freedom of expression, also apply online. Our work on the “Our Digital Future” project seeks to actualize these rights. With this goal, we are supporting a growing global coalition of experts, civil society advocates, and everyday Internet users who see online free expression as a crucial civil liberties issue. Prioritize free expression 1: PREVENT CENSORSHIP In our drag-and-drop tool, our first question asked participants to rank a set of 6 priorities: 1) protecting free expression; 2) clear and simple rules; 3) rules made democratically; 4) compensation for creators and artists; 5) privacy safeguards; 6) and protection for mediaconglomerates. Participants were instructed to rank their priorities in ascending order, with 1 indicating the highest priority and 6 representing the lowest priority. When asked to rank the six priorities, a clear majority (67 percent) chose “protecting free expression” as the highest priority with 26,894 votes out of 40,07 9.3 These supporters join 141,111 signees of “Stop Internet Censorship,” a targeted action to world leaders and decision makers with authority over the TPP, asking them to protect the rights of all people to access the Internet (see Box 2). These thousands of citizen-advocates have good reason to be concerned about the priority placed on free expression in the design of our copyright laws. In the most extreme cases, copyright law can have such chilling and punitive effects on free expression that it acts as a form of censorship. Unfortunately, as we will explore further in this section, cases with extreme, unintended consequences are becoming more and more common under copyright regimes like the takedown provisions of the US Digital Millennium Copyright Act (DMCA), the original incarnation of France’s HADOPI Law4 or Finland’s Lex Karpela,5 or that envisioned in leaked drafts of the TPP.6 Box 2: Say No to Internet Censorship: Action Text Dear Heads of State: 1. Protect the right of everyone to access the Internet in their daily lives. 2. Do not force ISPs to act as “internet police” monitoring our Internet use, censoring content, and removing whole websites. 3. Preserve the democratic rights of sovereign countries to draft their own copyright laws. 3 See “Appendix: Methodology” for full results for Question 1. 5 rt.com p.27 |
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Because of the nature of notice-and-takedown regimes, (as seen in the United States, the United Kingdom, Australia, and Singapore, among others) where content hosts must remove content immediately upon receipt of a notice from a purported copyright holder to protect themselves from legal action, and there are few to no consequences in practice for false notices, copyright holders can easily use weak or non-existent copyright claims to silence political speech that wouldn’t otherwise be as vulnerable to censorship. For example, NBC Universal removed a viral clip of U.S. Senator Elizabeth Warren shutting down a CNBC co-anchor,7 and deleted an Obama campaign video because of a copyright complaint.8 Multiple news networks such as CBS News, the Christian Broadcast Network, and Fox News launched DMCA notices on John McCain’s presidential campaign ads in 2008,9 while BMG Management Group used a DMCA claim to take down a campaign video for presidential candidate Mitt Romney, in which President Obama sings a few bars of “Let’s Stay Together.”10 These were not singular examples; in fact, in 2010, the Centre for Democracy and Technology produced a white paper detailing the threats that “meritless copyright claims” from both sides posed to online political speech during the 2008 US presidential election.11 Such abuses are certainly not limited to the American context: a recent example from South America saw several Ecuadorian officials targeting documentaries, tweets, and search results that include images of those officials for illegitimate takedowns.12 Internet Voice “On the Internet, free expression, creativity, education, public discourse and debate thrive like never before. The courts of the United States are already acknowledging that patent reform is needed. Copyright laws are also in desperate need of reform. The big companies scream infringement when none is intended. Do not simply hand the Internet to multinational corporations and lawyers. The people of the world finally have a voice.” – Chris Snyder, Sweden In another worrying example of censorship of political discourse, voting software company Diebold used cease-and-desist letters and the DMCA to force grassroots activists to take down leaked internal documents from the company.13 These documents included “statements that appear to suggest many continuing security problems with the software that runs the system, and last-minute software changes that, by law, are generally not allowed after election authorities have certified the software for an election.”14 Diebold was using a dubious copyright claim to try to silence public debate about voting, and cover up evidence of its own malfeasance. Among the accused activists were two college students who were unwilling to be silenced. In partnership with the Electronic Frontier Foundation (an Internet freedom advocacy group and Fair Deal coalition partner), they successfully sued Diebold, which was ordered to pay damages (the software company paid $125,000).15 Unfortunately, the Diebold case is the exception that proves the rule: most fraudulent copyright claims will never result in penalties for the offending rights holder. In a presentation for a US House of Representatives Subcommittee, Paul Sieminski, General Counsel for Automattic, a blogging platform with 48 million websites attracting approximately 400 million visitors and 13.1 billion page views each month, discussed Automattic’s own efforts to hold fraudulent copyright claimants accountable, telling subcommittee members: “While there are statutory damages for copyright infringement (even if very minor) there are no similar damages, or clear penalties of any kind, for submitting a fraudulent DMCA notice. The lawsuits that we filed represent the only recourse for abuse of the DMCA takedown process. The lawsuits were expensive to bring, time consuming to prosecute, and promise very little in the way of compensation in return. We brought these lawsuits, alongside our users, to protect their important free speech rights and send the message that abuse of the DMCA process has consequences (at least on WordPress.com). Cases like these are extremely rare, and I’m confident in saying that the users would not have the time, resources or sophistication to bring the suits on their own. The DMCA system gives copyright holders a powerful and easy-to-use weapon: the unilateral right to issue a takedown notice that a website operator (like Automattic) must honor or risk legalli ability. The system works so long as copyright owner suse this power in good faith. But too often they don’t.”16 p.28 |
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As Sieminski pointed out, Automattic has 251 staff including only one lawyer, and a team of seven people just to respond to DMCA takedown notices, of which they received 825 in the month preceding Sieminski’s testimony.17 Misused DMCA notices to Automattic included but were not limited to: a physician demanding removal of newspaper excerpts by falsely claiming to be a representative of the newspaper; an international corporation seeking removal of images of company documents posted by a whistleblower; a frequent submitter of DMCA notices seeking removal of a screenshot of an online discussion criticizing him for submitting overreaching DMCA notices;18 and, most disturbingly, a scam in which someone tried to undermine the work of science journalists by copying their work, backdating it, and claiming copyright in order to take down the original content.19 Automattic also made headlines when Straight Pride issued a takedown notice for an interview posted on Automattic’s blogging platform Wordpress.com, in which Straight Pride, a heterosexual pride organization, spoke favourably about Russian President Vladimir Putin’s crackdown on gay rights.20 "The abuses of copyright policy for the purposes of censorship are too numerous to list here, and are not just limited to political speech – they extend even to deleting opinions, feedback, reviews, criticism, or opinions the complainant simply doesn’t like.” Clearly, participants in the “Our Digital Future” project have every right to be worried about free expression: the abuses of copyright policy for the purposes of censorship are too numerous to list here, and are not just limited to political speech – they extend even to deleting opinions, feedback, reviews, criticism, or opinions the complainant simply doesn’t like.21 When, as Paul Sieminski points out, the targets of a takedown notice can only protect their free expression rights through recourse to the criminal justice system, which requires significant time and resources, the threat to freedom of expression is grave and urgent. Far from allowing this copyright censorship to spread via the TPP (Box 3), we need to take immediate action to protect free expression and limit copyright abuses. 11 www.cdt.org 12 www.eff.org 15 www.eff.org 21 openmedia.ca p.29 |
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Box 3: Internet Service Providers and the Trans-Pacific Partnership Agreement “The [leaked] draft chapter of the Trans-Pacific Partnership Agreement on Intellectual Property insists that signatories provide legal incentives for Internet Service Providers (ISPs) to privately enforce copyright protection rules. The TPP wants service providers to undertake the financial and administrative burdens of becoming copyright cops, serving a copyright maximalist agenda while disregarding the consequences for Internet freedom and innovation. TPP article 16.3 mandates a system of ISP liability that goes beyond the US Digital Millennium Copyright Act (DMCA) standards and US case law. In sum, the TPP pushes a framework beyond ACTA and possibly the spirit of the DMCA, since it opens the doors for: · Three-strikes policies and laws that require Internet intermediaries to terminate their users’ Internet accesson repeat allegations of copyright infringement · Requirements for Internet intermediaries to filter all Internet communications for potentially copyright-infringing material · ISP obligations to block access to websites that allegedly infringe or facilitate copyright infringement · Efforts to force intermediaries to disclose the identities of their customers to IP rightsholders on an allegation of copyright infringement.” From “TPP Creates Legal Incentives For ISPs To Police The Internet. What Is At Risk? Your Rights” by Kurt Opsahl and Carolina Rossini, August 24, 2012, eff.org “The leak of the Trans Pacific Partnership intellectual property chapter generated global coverage as full access to the proposed text provided a wake-up callon U.S. demands and the clear opposition from many TPP countries. [...] ISP liability in the TPP is shaping up to be a battle between Canada and the U.S., with countries lining up either in favour of a general notification obligation (Canada) or a notice-and-takedown system with the prospect of terminating subscriber Internet access and content blocking (U.S.).” From “The Trans Pacific Partnership IP Chapter Leaks: The Battle Over Internet Service Provider Liability” by MichaelGeist, November 13, 2013, michaelgeist.ca Fortunately, notice-and-notice regimes like the one formalized in Canada through Bill C-11, which requires that online service providers notify subscribers when a potential rights holder has submitted a notice claiming copyright infringement,22 have proven to be effective at preventing repeat copyright violations. Under the notice-and-notice system, in 2006 the Business Software Alliance sent out 60,000 notices and reported they have been “most effective.”23 The Entertainment Software Association of Canada reported in 2010 that 71 percent of notice recipients do not reinfringe.24 Internet service provider (ISP) Rogers noted in 2011 that only five percent of subscribers receive notice, and that 68 percent stop infringing after only one notice, 89 percent after two notices.25 As Professor Michael Geist, the Canada Research Chair in Internet and E-commerce Law, notes: “If there are a couple of outliers in the population – the Rogers data showed about 1 in 800,000 at the extreme end of the spectrum of several dozen notices to a single household – there is absolutely nothing to stop the rights holder from taking legal action against those individuals. There is no need to threaten tens of thousands with cutting off Internet access, when rights holders are perfectly capable of taking action against the (literally) handful of people that repeatedly infringeat the extreme end of the scale.”26 Given the effectiveness of notice and notice, and the reality that copyright laws are being used as a new censorship tool, the consensus of experts and civil rights advocates in the Fair Deal coalition is that notice-and-notice regimes better protect the interests of Internet users. In an open letter to Ministers and lawmakers of TPP negotiating countries, the coalition has called either for the wider implementation of notice-and-notice regimes, or judicial involvement in the takedown system, to ensure the application of due process.27 Attention to due process, privacy rights, and the presumption of innocence are essential to prevent censorship in the name of copyright law. Allowing rights holders an unfettered ability to take down material on a whim encourages abuse of the law; such a regime is detrimental to the health and vitality of global public discourse. p.30 |
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Prioritize free expression 2: PROTECT FAIR USE AND/OR FAIR DEALING Participants in the “Our Digital Future” crowdsourcing project were also strong believers in a range of rights to re-use and modify aspects of a creative work. The majority of our respondents – 84.8 percent of 9,020 – agreed that users should “be able to create parodies, remixes and fan fiction without having to break the law and face penalties.” A similar number – 86.2 percent – agreed users should “be able to excerpt from works to share commentaries and reviews without fear of legal penalties.”28 Copyright laws typically protect these rights through provisions like fair dealing (Canada, the UK, Australia, New Zealand, Singapore) or fair use (the US, Poland, and South Korea) (see Box 4). Unfortunately, the Internet community has a very legitimate cause to be coming together to speak out about the importance of these rights at this time, as takedown notices are also used to remove content that should be protected under fair use or fair dealing. For example, in June 2013 the Church of Scientology forced a domain registrar and website host to take down cheerupwillsmith.com, a parody site that used satire to make fun of the Church, its relationship to the actor Will Smith, and its alleged control over its members.29 The website was pulled down without challenge, despite the fact that it had no commercial purpose and was clearly permitted within the fair use doctrine.30 Box 4: Fair Dealing versus Fair Use Under the fair dealing system (found in Canada and the United Kingdom), use of a work must fall into a specific category of purpose for the exception to apply, such as education, parody, research, news, or criticism. Only once the use qualifies for one of these categories does the analysis move on to decide if it was actually fair, through a six-factor test. If an instance of copying cannot fit into one of the set out categories, then it is not exempt under fair dealing. By contrast, fair use (such as in the United States and Israel) does not require fitting the use into an explicit category before analyzing its fairness. While U.S. copyright law also sets out categories, or purposes, they are listed as mere examples of fair use, not its boundaries. Courts may add any other purpose they see fit, if they find that the use is fair. This leads to much greater flexibility than fair dealing offers, though some argue that Canadian courts’ increasingly expansive approach to fair dealing has shifted its system towards the open-ended model of fair use.31 22 www.entertainmentmedialawsignal.com 23 www.eff.org 24 www.eff.org 27 openmedia.ca 28 See “Appendix: Methodology” for full results for this question. 29 www.eff.org 30 openmedia.ca p.31 |
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"Even Canadian-based entities that might otherwise be under a notice-and-notice regime have attempted to censor parodies and other content that offends their sensibilities.” Because of the dominance of US-based distribution channels like YouTube, even Canadian-based entities that might otherwise be under a notice-and-notice regime have attempted to censor parodies and other content that offends their sensibilities. In two examples related to the highly politically charged issue of oil sands development, Tourism Alberta used Canadian law firm Dentons (which also represents energy company Enbridge) to deliver a takedown notice directed at a parody video that spoofed a vacation to Alberta to visit the oil sands.32 Canadian-headquartered energy company Encana also used the DMCA to file a takedown notice directed at an audio file of one of its executives swearing. In this case, however, the owner of the hosting company Chirbit refused by citing fair use provisions.33 34 These examples point not only to the importance of modifying notice-and-takedown regimes (and preventing their proliferation) but also to the importance of protection for fair use and fair dealing. Fair use and fair dealing need to be given a broad scope within the domain of copyright, as they are intended to protect an incredibly wide range of crucial modes of cultural expression (everything from satire to private study). For this reason, copyright holders should be required to consider fair use before sending takedown notices.35 Given the results of the “Our Digital Future” crowdsourcing process, we join London-based human rights organization Article 19 in supporting their sixth principle on free expression and copyright in the digital age: Limitations and exceptions to copyright, especially fair dealing, should be interpreted broadly so as to give greater protection to the right to freedom of expression... Creative and transformative uses of original works subject to copyright should benefit from broad protection under the fair dealing exception to copyright.36 This need for a broad interpretation of exceptions to copyright extends to the unique case of remixes. We follow Harvard Law Professor Lawrence Lessig, and the implication of the clear majority of responses to the question in our crowdsourcing process, in asserting that amateur and non-commercial uses of work for remixes and mash-ups should be exempted from the scope of rights granted by copyright – not simply covered under fair use.37 Commercial remixes or mash-ups that are “highly transformative”38 and do not impact upon the primary market of the copyright owner should also be permitted under fair use or fair dealing.39 In many cases, remixes are of a completely different genre and style than their source material, and thus do not cause Internet users to forego consumption and purchase of the original. In fact, they may help the creator of the original work to reach new audiences, and therefore new markets. Internet Voice “Sharing is caring - not piracy. We must reject copyright censorship and profiteering for almost the entirety of human history ‘ideas were free’, but the growing dominance of the ‘market economy’ – where our intellectual ideas are bought & sold as ‘products’ – has resulted in greedy monopolies, stifled creativity, innovation, impeded progress, censorship and other terrible consequences. Our draconian system of patent & copyright laws don’t acknowledge the derivative nature of creativity.” - Frances p.32 |
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Cultural creators are always participating in the vast legacy of creative work that has come before them. Original works are enriched by allusion, homage and reference to works from the past; therefore, it is important to leave as much room as possible within copyright law for fair use and fair dealing that protects creators (an issue we explored in our first recommendation, Respect Creators). Outside of the creative uses of copyright material, fair use and fair dealing rights are also essential elements of free expression, given that they afford protection for such politically and socially important modes of discourse as critique, parody and education. Provisions that allow for fair use/fair dealing of copyright works, interpreted broadly,40 are the correct approach to protecting the rights of content creators without harming free expression. 35 www.eff.org 38 “Transformative use refers to the use of existing expression as an input into the creative process, resulting in the creation of new expression that, while still embodying elements of the original work, is original in its own right. This type of creativity is beneficial for society and should be encouraged. Individuals should have the ability to express themselves, and participate in the interpretation of their culture.” nic.suzor.net p.1 39 eprints.qut.edu.au p.4 40 As Canada and American courts have been doing. See fairduty.wordpress.com and fairduty.wordpress.com p.33 |
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Prioritize free expression 3: PROMOTE ACCESS AND AFFORDABILITY Free expression, according to the Universal Declaration on Human Rights, includes the right to “seek, receive and impart information and ideas through any media” (see Box 1 in this chapter, page 27). Increasingly, all around the world, the Internet is becoming the primary medium where people from diverse backgrounds share information.41 Internet access, and access to digital technologies, is therefore increasingly a free expression concern. Beyond the extremely important issue of the global digital divide,42 certain approaches to copyright law negatively impact the ability of specific populations, like the vision impaired, to access the Internet, and are therefore harmful to their free expression rights. These include the crucial issues of digital locks and intermediary liability; in order to prioritize free expression, we must take affordability and access concerns particularly seriously in regards to these two issues. Digital Locks Article 11 of the World Intellectual Property Organization’s (WIPO) 1996 Copyright Treaty (which is in force in 9 of the 12 TPP negotiating countries) contains a provision for legal protection against the circumvention of technological protection measures (TPMs). TPMs are part of digital rights management (DRM), types of technologies that can “lock” a file, sometimes restricting or preventing any attempt to convert or transfer files. TPMs can help content companies control how citizens use the content and digital devices they own. From the content companies' perspective, a “single file” understanding of content means customers must purchase multiple versions of a file if they wish to access it in different formats. This “one use single file” deviates dramatically from most users’ understanding of media commodities - users see themselves as buying the content (i.e. the song, the book) not the single file. Were you to purchase a CD, you certainly would not think that you needed two copies in order to play it on the devices in your home and in your car. Internet Voice “As a part of the special needs community, I want to be able to continue sharing resources with others without the fear of sanctions – as a community we are often isolated and without the Internet, we would be even more so.” – Monica Given the possibility of the open Internet to make knowledge and culture more affordable and easy to access, requiring people to pay and purchase more than they would have for the non-digital versions is a clear step backwards, not forwards to a future where free expression flourishes. Internet Voice “I moved from the UK to Canada five years ago and I’m forced to choose a location in order to access digital media on my devices, yet certain content is not always available ‘in my region’ (i.e. BBC programs, iTunes purchases). Since I don’t want to lose access to the media I’ve previously bought, I keep my devices registered to the UK. As such, I don’t buy much digital content. Considering how ultramobile people and their devices are, it’s time we scrapped regional and device-related restrictions so we can experience any media, regardless of our location, region or devices.” – Marten p.34 |
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More seriously, without significant exceptions made for persons with perceptual disabilities,43 digital locks can make it nearly impossible and illegal for the vision impaired to convert digital files into audio format, or do other kinds of format shifting required for accessibility reasons (see Image 1). Enlightened policy would see incentives for new titles to be made available in accessible formats, at the point of publication.44 The status quo sees the interests of Big Media companies elevated above those of vision impaired users; vision impaired users must not be prohibited from creating or format shifting their own content. Media files cater to individuals without any disability – as our society becomes an information society, we cannot let individuals with accessibility concerns become even further marginalized. (image) CREDIT: Copy/South Research Group Unfortunately, the “one use single file” approach to copyright law with minimal exceptions would likely be widely institutionalized by the TPP. Leaked drafts from February 2011 show that the TPP would push stricter anti-circumvention policies than those found in either the WIPO Copyright Treaty or the US DMCA, including liability for circumvention even if it did not involve copyright infringement (i.e. if the digital lock was broken in order to facilitate a fair use of the content), and mandatory prison sentences for criminal anticircumvention violations.45 If the TPP goes through in its present form, vision impaired people everywhere could suffer a great loss to their free expression rights in our digital society.
42 blogs.wsj.com; Note also that copyright laws have differential impacts on those in the Global North and those in the Global South. A full examination of this question is beyond the scope of this report, but see The copy/south dossier: issues in the economics, politics, and ideology of copyright in the global south., 2006 Copy/South Research Group, eprints.rclis.org for groundbreaking work on these issues. 43 Like those proposed in the Marrakesh Treaty, which some TPP negotiating countries, including the United States, have signed: www.worldblindunion.org 44 ibid. p.35 |
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Intermediary Liability The issue of intermediary (including ISP) liability brings up another concern related to ease of Internet access: the affordability of Internet services. ISP liability refers to the potential for ISPs to be responsible for the copyright-infringing behaviour of their customers (see Box 3 in this Chapter), and possibly made to pay damages to the rights holders, or buy insurance to protect them from such occurrences. This is the type of system proposed in a discussion paper in July 2014 by Australia’s Attorney General George Brandis,47 and found in leaked drafts of the TPP,48 despite the fact that that there is little evidence that these systems work to reduce infringement.49 In the case that these rules are implemented, ISPs would inevitably pass these costs onto their customers, thereby making the Internet more expensive for everyone.50 Of the 9,386 respondents to a question posed in our crowdsourcing process about responsibility for copyright enforcement, only 11.3 percent believed ISPs should be the ones responsible – the majority believed that either law enforcement officials (35.1 percent) or the copyright holders themselves (48.1 percent) should be responsible.51 In other words, our respondents do not believe in ISP liability - they don’t want ISPs to become de facto copyright police. Similarly, respondents did not believe ISPs should be forced to share our private data: only 1.9 percent of those who answered the germane question (9,567 respondents) in our drag-and-drop tool believed ISPs should share user information with any copyright holder who asks for it. Most respondents believed that court orders or judicial authorization should be necessary (72.3 percent), or that ISPs should not share our information at all.52 Like the question of DRM and digital locks, we need to take Internet users’ perspectives seriously, particularly since limiting liability for Internet service providers and other intermediaries is an accessibility concern. Many low-income communities still struggle to get or maintain access to the Internet,53 particularly in countries where the Internet service market is very concentrated. A report for Industry Canada from 2011 found that “many of the smaller ISPs would be out of business ‘within the hour’ or ‘immediately’ if they were held liable to cover the costs of copyright infringement at rates proposed by some of the content industry players (in this specific case, rates proposed by the Society of Composers, Authors and Music Publishers of Canada).54 The same report recognized that the lower administrative costs of notice-and-notice as compared to notice-and-takedown were a positive implication of the former system. We therefore have even more reason to support a notice-and-notice-style system, and to stand with Article 19 in their 10th principle for free expression and copyright in a digital age: “Intermediaries which provide services, such as providing access, or searching for, or the transmission or caching of information, should not be liable for infringing content disseminated by third parties using those services.”55 p.36 |
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Prioritize free expression 4: CLEAR AND SIMPLE RULES Finally, all of the above rights to fair use, fair dealing, recourse in the case of illegitimate notices or takedowns, format shifting, and more, depend on Internet users having a clear understanding of the rules surrounding copyright. Prioritizing free expression means making free expression rights clear; it is therefore no surprise that the second most important priority for the respondents to the first question in our consultation was clear and simple rules.56 What this tells us is that Internet users want intellectual property and copyright rules to be written in a manner that is clear and accessible. Citizens cannot exercise their rights if they can’t understand them. As the Authors Alliance notes, creators have a particular interest in clear rules – current copyright laws often make it difficult for creators to understand which rights they are giving up and which rights they are retaining when they enter into agreements with publishers or other institutions.57 Internet Voice “I would like to get rid of the current copyright law(s); they are so convoluted that the ordinary citizen and even librarians who follow the law are unable to understand it. We need to start over on copyright.” - Paul More often than not, copyright laws and rules are written in a highly legal or technical manner that most people are not familiar with. This means that presently, the interpretation of copyright rules is the near-exclusive domain of legal experts. Crucial decisions such as how long a work should be considered copyrighted before it has entered the public domain, whether an instance of alleged copyright violation qualifies as fair use or fair dealing, or what kind of punishment is reasonable for real violations are often left for litigators and judges to decide. Even Universal Music, the Motion Picture Association of America (MPAA) and the Record Industry Association of America (RIAA) have insisted that fair use determinations are so challenging it is impossible to take them into consideration before issuing takedown notices.58 Clear, simple copyright rules would help ensure everyone has an opportunity to understand their legal rights - and remove the excuse for not considering fair use rights that are so crucial to free expression. We suggest that policy-makers write and communicate laws in a clear, concise manner, designed to be accessible to the people they are meant to serve. A straightforward approach to copyright will help create empowered and educated citizens of the Internet, who understand how to share, give credit, and exercise their free expression rights. Internet Voice “I would love to browse around the Internet without worrying about significant grey areas that give license for a vindictive prosecutor or district attorney to build a case to unjustly manufacture me into a criminal. There need to be clear black-and-white rules about what will and what will not get you in hot water.” - Damon 46 www.article19.org p.18 50 theconversation.com or cyber.law.harvard.edu 51 See “Appendix 1: Methodology” for full results for Question 1. 52 See “Appendix 1: Methodology” for full results for the crowdsourcing tool. 53 See openmedia.ca or www.theguardian.com 54 www.ic.gc.ca 55 www.article19.org p.16 56 See “Appendix 1: Methodology” for full results for Question 1. 58 www.eff.org p.37 |
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