Copyright, Fair Use, and the Need for Revenue

The laws of copyright have been abused and misused of late in a desperate attempt by European newspapers and music industry bodies to monetise the inclusion of articles and songs into online content.

In Ireland, a representative body for a cross-section of Irish newspapers attempted to extract royalty payments from individuals who included any link on their own sites to articles published on the web by its newspapers. It even targeted a charity that had included links to articles about it on its website.

The newspaper body quickly reassessed its position after coming under intense media pressure. It decided it would not seek royalty payments where an individual merely linked to a newspaper article and there was no reproduction of images or content from the newspaper by the individual for commercial use.

Ireland is not the only country with copyright problems. The US issues with copyright and intellectual property rights have emerged again with the recent ban on unlocking mobile phones. Since the defeat of SOPA the uncertainty surrounding the use of copyright to stifle freedom of expression and the sharing of ideas has somewhat disappeared.

Under US copyright law, the ‘fair use’ doctrine allows the use of a copyrighted piece of work by a third party in certain circumstances. It takes a practical approach to the third party use and assesses whether it is of a commercial nature; how much of the copyrighted work it reproduces and, most importantly, the effect of the use on the potential value or market for the copyrighted work. While this may not save cell phone users who wish to unlock their phones, it is a useful exception.

Ireland also has a similar exemption under its laws . A copyrighted work is not infringed where it is added to a new work in a secondary manner that does not ‘unreasonably prejudice’ the interests of the copyright owner. In the case of individuals linking to articles published online by newspapers, where the link is just included as part of the article then it is difficult to see how it could unreasonably prejudice the rights of the copyright holder. The request for payment by the newspaper organisation noted above would more than likely have fallen under this exclusion.

Germany unfortunately has no such exemption under its laws. GEMA, a German music industry body, has won a court case to allow it to block the publication of videos on YouTube that include music in the background, many times only as a result of where the video was filmed and not because the filmmaker has intentionally added it. GEMA has requested a per-stream payment of €0.00375 to allow the videos to be shown.

Germany is just another example of the manic attempts by industry to apply copyright in the wrong way. In the Irish context, consider this http://www.thejournal.ie/readme/newspapers-charges-linking-ireland-740093-Jan2013/. Have I just infringed on the rights of the paper I just linked to or have I driven content to their site that otherwise would never have clicked into that article? You decide. That link is merely a tiny section of this overall article and, as such, could it really be said to ‘unreasonably prejudice’ the rights of the copyright holder?

Another consideration, particularly with regards to music, is the potential benefit of including a song into another work. Bear with me as I draw a comparison with a recent pop culture phenomenon. How many of us have been subjected to countless videos of individuals dancing ‘Gangham Style’ to the music of South Korean musician PSY? A search of YouTube returns over half a million videos of people jumping around like show ponies.

Where PSY had chosen to use copyright to block individuals from publishing videos featuring his music or, even worse, attempted to charge them for inclusion of his song into the videos, would he have any measure of the international fame he now enjoys?

Obviously I’m not suggesting that internet users be given full reign to use copyrighted works online. It is recommended that owners and defenders of copyrightable works become smarter about how and when they invoke the protections available under the law.

Where an individual copies an article, or an extract from it, directly into an online work without acknowledging the original author then he should be liable for infringement of the author’s rights. On the flip side, where a website links to an article on a newspapers online offering and this helps to drive traffic to that newspaper’s site and promote awareness of its brand, this should be encouraged.

Similarly, where a section of a music video is used by an individual within a video that is posted online, the creator or owner of that piece of music must consider whether this will be of potential benefit to them in driving sales of their song or if it is a genuine infringement of their rights. Where the use of the song is for a non-commercial purpose or is merely incidental to the video, the song’s owner should welcome this rather than try to stamp it out.

It is obvious that newspapers and the music industries are under pressure (in the case of the US mobile industry there attempt to misuse intellectual property rights may just be greed). What does not seem to be obvious to them is the enormous benefits that can accrue from allowing their products to be promoted by individuals across the web. Sure they do not get an immediate swell in their bank accounts by charging a royalty but what they get is something greater – free global advertising and increased brand recognition.

Lisa is a solicitor with Leman Solicitors, Dublin with a fondness for IP and data protection. She is also a journalist and wrote for New Tech Post.

You can follow Lisa on Twitter.

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2 thoughts on “Copyright, Fair Use, and the Need for Revenue

  1. I’m sorry but this article maddens me.Every content creator has rights, commercial but also moral. It doesn’t matter in what context the content is being used, whether it is promoting the creator’s work or not – at the very least, the permission of the creator should be sought upfront – why should the onus be on the creator to monitor uses of their own creations?The argument is not new – this is the very reason why collection societies such as BMI, ASCAP and IMRO were founded in the last century. Music sampling, which was rife in the 80’s, is now well regulated. And the synch rights system has worked fine for film and TV production for 80 years – so why should the situation be any different for new media?

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  2. The point is where the use of the copyrighted material does not materially prejudice the rights of the owner or the content is merely incidentally included in the work then there is an exception under most national law for this and rightly so. This exception should be applied to new media and it has not properly been so to date.

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