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.

Interview: Dan Gillmor On The Changing Media Landscape

Dan Gillmor is director of the Knight Center for Digital Media Entrepreneurship at Arizona State University. He was a columnist for the San Jose Mercury for a number of years and is a regular contributor to Salon.com. In his soon to be new book, “Mediactive“, he writes about how people need to stop being passive consumers of media and become more engaged. Plus, in addition to inherited principles of journalistic ethics, we need to take a deeper look at new ideas such as transparency. The book also looks at how our society will be transformed by the new social customs that are forming.

Dan will be a keynote speaker at BlogTalk 2010 in Galway, Ireland.

We began our interview by discussing the state of flux in the mainstream media (MSM) and how it is coping with the changes brought about by the developments in the online technological landscape.

“My sense of the traditional press is that they are still caught up in a manufacturing model of journalism and that is a constraint all by itself. If that’s how you do your work, the whole process infects the rest of it… you’ve automatically constrained your ability to go beyond what you might otherwise do.

“Another part is a cultural or institutional arrogance about traditional journalism. This is not true of everyone. There are many and increasing numbers of people in the business who get this. And there are a few institutions, and I would cite for example The Guardian that thoroughly gets it.”

However, Dan points out that it is not a black and white issue. There are plenty of dyed-in-the-wool journalists at The Guardian who are very reluctant to adapt to new ways of doing things. Conversely, at highly conservative institutions such as the Washington Post, there are individuals who understand that change is taking place and are responding appropriately.

The context for this change in attitude is realising that the MSM can no longer be just the voice of assumed authority telling us how it is and leaving it at that.

“The traditional journalism role of deciding what’s important is still pretty valuable, but it’s absurd to say here’s everything that’s important and I am not even going to point you to further background. That’s crazy but that’s typically what they do. It reflects the culture of lecturing at people rather than recognising that this is conversation. All media is at some level social now and where that’s going to take us is really going to be fun to watch.”

Dan went on to describe an aspect of the resistance to change towards operating in the new communications environment.

“For those of us who are watching this and participating in it, it’s a combination of fun and daunting in some ways as we don’t know where it’s going to go, and we’re struggling with that in some ways. If your career is being turned upside down by forces that seem out of control then it’s less fun, but that is the reality.”

For many journalists and communicators who are seeing their whole way of life changing, and for whom it is becoming increasingly harder to prepare for what is coming over the horizon, there is hope. Dan goes on to say, “For journalism and communication it’s clear to me that the future is in a large part about entrepreneurship because… traditional business models for media [are] exploding and simultaneously we see the entry barrier drop to zero. Which means we are going to see lots of people try lots of things. What will emerge is still unclear. I am fairly confident that we are going to end up with more and better than we had in the past.”

While Dan is optimistic about the future he says there are developments which we should observe carefully.

“I think we’re starting to see more opportunities for very real-time news as opposed to the traditional news. But as we see that, I think there is also an understanding starting to emerge that the wrong response to seeing something flash by on Twitter is to automatically believe it. We’re in real trouble if we don’t slow down a little bit. We should be skeptical of just about everything.

“When you see or hear something that there’s no strong evidence for, the appropriate response is, ‘That’s interesting if it’s true.’ Not, ‘Oh, my God!’ Right now, we are still saying, ‘Oh, my God!’ We are still getting fooled by things that are false and are wildly misleading, and there are real risks to taking for granted what you see or hear without seeing evidence.”

After this admonition to keep our critical faculties in the fully switched-on mode, we discussed the purpose of his visit to Galway. I asked him why people were still making long journeys, and spending time away from home when we can access each other electronically any time we please.

“It doesn’t surprise me that people still want to get together in person. It’s just a better… virtual communications are not as good. That’s just a fact. So, putting people in a room together is still an important part of business and getting ideas more fully developed.

“I think the nature of conferences is changing actually to a more unconference-y style where people recognise that the audience is at least as interesting as the speakers. The Q&A portion of a talk is always better than the talk. I’ve been to and done several conferences where it was assumed that the main panelists were the people in the audience.”

We look forward to hearing him speak more about the rapidly changing media landscape at the end of this month.

BlogTalk is returning to Ireland on 26-27 August; check out the speaker list.