With the possibility of copyrighted content being altered by other users when posted on user-generated sites like YouTube – recently purchased by Google for US$1.65 billion – content owners are facing increasingly complex rights issues. Should they retain an iron-fisted approach when it comes to their copyright and risk losing out on a market that is becoming increasingly user-driven, or should they relax restrictions on use and trust the market to sort itself out?
It’s a question that will become increasingly important in the user-generated services age, one in which London-based solicitor Hubert Best says pop culture – most of which is protected by copyright – is adapted and used in new ways. For example, when a user posts of a clip of himself covering an existing song, the music rights for that song are retained by the original authors, but if an arrangement of the song is made, the music industry norm is that the original rights owner asks for copyright of the new work. ‘It seems to me there is a collision coming along,’ says Best. He recalls the enormous litigation surrounding file sharing services like Napster and Grokster, and predicts one of two things may happen with current user-generated services: either the market and the rights owners are going to adapt so that the sites will become commercially viable without huge court cases, or they are going to object to their materials being used in this way, and there will be a new round of major court cases.
‘The whole [user-generated] culture is so innovative and exciting that I think every part of the industry ought to be rushing to adapt and develop new business models that actually function, rather than trying to bolt the stable door – which is clearly not possible,’ says Best. After all, file sharing didn’t grind to a halt after the court cases surrounding that practice. In fact, music industry watchdog riaa has dropped many of the suits brought against defendants because it looked likely that it would lose some of them, creating a dangerous legal precedent in favor of file sharers. ‘It seems to me that the winners with these user-generated services will be the people who come up with new models that give the user the freedom they want,’ he says.
The issue then becomes how content owners are going to protect their rights. While there is a legal framework that protects copyright content online, issues arise with user-generated content when users change material and construct new works from it. Best hypothesizes: ‘Someone may take my beautiful classical music with lovely visual content that’s on YouTube and make it into something hip-hop and add porn images.’ This would be an issue of moral rights: rights whereby the creator of material has the right not to have it used in a way that will bring them into disrepute. In Best’s hypothetical, he would say his moral right was being infringed because the reworked material would give him a bad reputation.
This law is your law, this law is my law
The issue of moral rights highlights the differences in copyright laws around the world. In the us, for example, moral rights only exist for works of art – not online content – whereas in Canada and Europe, moral rights do apply to online materials.
Not only do different countries have different rights, they also have different understandings and protections of copyright. Consider a scenario where original material from one country is manipulated in another and then transferred via the Web to a third. Suddenly, there can be three separate rights holders in as many countries, all operating safely within their respective copyright laws. ‘And how are they going to sort it out?’ questions Best. The borderless nature of the Web means that unless material posted online is somehow restricted, Best says, ‘there are enormous questions coming up about which law applies to it.’
Best takes the argument further with another scenario: if something is posted online in England and the person who posted it has the rights there, but not the Canadian rights, and then a Canadian user downloads it, is the original poster responsible for a copyright infringement in Canada? The tradition of rights being sold territory by territory in the audio visual archive field goes out the window as soon as the materials are available on the Web.
Best warns that as users take control of material and do their own thing with it, ‘If you don’t go with the flow, you are going to lose out on an ever-expanding market.’ He speculates that as the YouTube craze gains strength, there must be a new market for commercial sales of interesting archive footage to be used by individuals for user-generated content as opposed to straightforward B2B commercial sales, provided it fits into the right models for the libraries. So, for archives assuming this trend won’t bring any revenue opportunities, think again.