By Grégoire Marino
In its December press release, the European Commission agreed to reopen the debate on copyright. A dialogue will be launched to tackle several major issues with the current copyright framework, including the topic ‘user-generated content’. The outcome of this open discussion should guide the Commission in its mission to modernize the European copyright framework and adapt it to the digital economy. ‘User-generated content’ is a major bone of contention in the copyright debate. It is also a confusing concept in that it fails to distinguish original content from derivative works, which is the actual point of disagreement between rights holders, providers of online services and their users. Derivative works are based on one or more pre-existing copyright protected works and the right to create them is exclusively reserved to their original creators. The standard practice for rights holders is to license such rights on an individual basis, so as to control the adaptation of their work and to generate income from the commercialization of derivatives. This classic licensing model has arguably lost some of its relevance in the internet age, whereas copyright is at best misunderstood if not simply ignored by most users.
Nowadays everyone has easy access to user-generated content. Recent advances in technology have reduced the costs of creating and sharing derivative works, and the mass popularity of social media such as YouTube, Facebook or Tumblr has prompted the emergence of new social and cultural behaviours, where people are now empowered to become active creators. This phenomenon, called the ‘read/write culture’ by Lawrence Lessig but often referred to as the ‘remix culture’, has radically transformed our creative landscape and favoured the rapid development of social media, which provide the backbone for instantaneous content distribution. Over a few years these companies have also built vibrant audiences eager to consume, create and share, and they have found innovative ways to serve these audiences and to fuel a new type of creativity.
The fast development of social media companies in Europe has also been enabled in part by the ‘hosting’ provision of the e-Commerce Directive, which is loosely based on similar provisions in the US Digital Millennium Copyright Act and analogously limits the liability of internet service providers for hosting infringing content, provided they swiftly remove that content as soon as they become aware of it, usually upon a rights holder’s notification. Even if it is true that this limitation of liability is indispensable for ISPs, it places the monitoring burden on the rights holders, since the directive clearly states that there is no obligation on ISPs to monitor for infringing content. This is the apple of discord for them, as they strongly disagree with the sheer principle of monitoring their own content. This situation affects in turn social media users who are immersed in the remix culture. That culture does not recognize the complexities of copyright law: for example, crediting the original author is deemed sufficient when a derivative work is created for non-commercial purposes, although this is clearly not sufficient from a legal point of view, absent any fair use defences. Users are often left confused about how and why the content they intend to share is infringing on someone else’s copyright.
It is clear that user-generated content is here to stay. Finding inspiration in the works of others and building upon it has become a socially—if not legally—endorsed process of self-expression and this fact is becoming increasingly difficult to ignore, when 72 hours of video are uploaded on to YouTube every minute. One can only welcome the decision of the European Commission to prioritize this issue and hope that its cultural and social dimensions won’t be underestimated. It is in the interest of all stakeholders to closely collaborate, so as to find a solution that works for everyone. Rights holders might want to become more open to the concept of user-generated content and show more flexibility towards the use of their rights. ISPs and social media must act responsibly and go beyond the minimal requirements in limiting their liability in case of copyright infringement. Focus should be put on educating their users, so that they understand basic copyright concepts and feel more secure when sharing content online. Finally, the European Commission should supervise the debate as transparently as possible without neglecting its social and cultural implications. To that extent, the involvement of the digital agenda team and of the Culture Directorate is a sign that advancing towards a balanced copyright framework has been understood as a concerted effort and this acknowledgement alone should be praised.
A version of this article originally appeared as an editorial in the Journal of Intellectual Property Law and Practice.
Grégoire Marino is a IP & IT enthusiast who likes to look at copyright and patent issues from a social and public policy perspective. He currently works as a rights and privacy specialist for a leading social sound platform and serves as editorial board member of OUP’s Journal of Intellectual Property Law & Practice. Feel free to ask him anything here.
Journal of Intellectual Property Law and Practice is a peer-reviewed journal dedicated to intellectual property law and practice. Published monthly, coverage includes the full range of substantive IP topics, practice-related matters such as litigation, enforcement, drafting and transactions, plus relevant aspects of related subjects such as competition and world trade law. Read the JIPLP blog.
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