Google is remaking what’s OK and what’s not under copyright law.
The use of search engines (see table below) has a domino affect. People use search engines and then copy found content elsewhere to create what is now known as “user generated content”. That’s not a technical phrase. The phrase certainly means little in the context of copyright law. There’s bound to be more court cases about it sometime soon.
1. Legal questions for user generated content
This article is about user generated content. Even to begin to interpret that phrase, law requires answers to at least these questions:
- Is the content original to the user (eg an original comment to a blog post or original video upload to revver.com)?
- Is the content uploaded with or without permission?
- Is the content without permission but fitting within the exception of fair dealing (Australia) or fair use (America), eg for the purposes of research or for reporting news?
- Is any permission conditional (eg requiring credits, watermarks or IP notices)?
As with these questions, where copyright law stands for user generated content is explainable, but not simple. The limitations to the rights of users of copyright material have never been simple to explain.
2. What’s changed and affecting copyright values and valuation?
More than ever established copyright revenues are at stake and hence national agendas. This inevitably involves the politics of debate about law and any required change to it to adapt to new circumstances, such as the impact of the internet. Don’t expect things to change dramatically or quickly. They won’t.
Content owners can earn legally secured revenues from their legal copyright monopoly. Copyright law gives that monopoly power.
Some critique major copyright content owners as if they are empires. I would not.
News Corp, for example, has considerable copyright-based revenues and power, but that does not make it an empire in its dealings with the copyright materials it owns or controls. There’s a difference between gunboat diplomacy (empires excel in this) and the principle of user pays.
If you want to use all or bits of The Empire Strikes Back, or other films in the Star Wars series, at your cinema or website or even as user generated content, then as a user you gotta pay News Corp. Through its subsidiary, 20th Century Fox, it owns certain film distribution rights to the series. To reference the above questions – Lucas and his collaborators made an original film (hence there is copyright in it). They then licensed or granted permissions under copyright law to Fox to distribute the film.
So why the empire accusations against major content owners? What’s changing is that in combination the internet, the copying power of computer chips, and IT architecture generally all increase the threat to the historical, practical and legal monopoly control copyright owners have enjoyed over access and distribution of their content.
This change shifts the values held by content users and their perception of the value of copyright work. It takes an instant and micro cents to copy, using a computer. Yet, as much as computers have helped, the speed of creation remains generally a time consuming and expensive business.
Major copyright owners and major copyright users, distributors and conduits – like Google and internet service providers – are lined up against each other. In the middle ground they argue over who pays for access to end user dollars.
With a comparable alignment of force, the copyright war moves to another phase. This is the topic of sections 3, 4 and 5 of this article.
3. Copyright owner’s principles for user generated content
Copyright owners made a move this month in the United States. Major copyright owners, including those in fear of Google and user generated content, released Principles for User Generated Content Services. It is not intended as a statement that is legally binding on the copyright holders. Instead it is their joint statement of what they want others to do to avoid legal attack.
Every author and publisher on the internet in Australia and elsewhere should read the Principles. Many should obtain legal advice on their potential exposure.
In addition to News Corporation (via its Fox Entertainment Group and MySpace), Viacom has signed the Principles. Viacom remains famous for its March 2007 launch of a US$1 billion court case against YouTube which is owned by Google. Other U.S. copyright-owning signatories to the Principles include The Walt Disney Company, CBS, NBC Universal and Microsoft. A France-based signatory is YouTube-like site, Dailymotion.
4. Google’s copyright strategy
Google is not among the signatories. It is not an accident that the Principles have been made public in the same month as release of a content filtering technological fix from YouTube, the YouTube Video Identification Beta: http://www.youtube.com/t/video_id_about. Viacom is not too pleased that YouTube has gone with a YouTube-specific filtering technology. The next phase of the copyright wars will draw in content filtering technology standards.
5. Viacom’s copyright strategy
Legal and standards wars are messy business. Each of the old, new and merging media players is in a struggle over technology, standards, business models, spin, influence, law, industry conventions, eyeballs and money (whether that’s from subscriptions, advertising or other funding models).
Viacom is reducing its risk by taking a four-way bet. First, it has a legal war on, eg its United States court action against Google. Second, it has licensed content to Joost and others to reach more eyeballs online. Third, it is using persuasion against unlicensed users, eg it is a signatory to the Principles. Fourth, it has joined Web 2.0 darlings online by opening up selected content to its multiple content websites. Further, if it sees a meaty web start-up to acquire then it may become its fifth bet.
The current four-way bet is not the way Viacom President and CEO, Philippe Dauman put it on stage in San Francisco this month at the Web 2.0 Summit though he referenced each bet, including the fourth. He confirmed Viacom has made available online every episode of Comedy Central’s The Daily Show with Jon Stewart at http://www.thedailyshow.com/. There’s 7,128 videos there since 1999. That’s a lot of content.
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