User-Generated Content: ‘fair dealing’ on unfair terms?

David Vaile(drawing on work by Sophia Christou and Alana

Maurushat)

Cyberspace Law and Policy Centre

For AIMIA 27 May 2008

Contents

Fair dealing exceptions in current Australian Law

Fair dealing exceptions in US Characteristics of User-Generated Content Fair dealing exceptions for copyright owners Fair dealing exceptions for user-producers of

UGC: Judicial activism anticipated Example of terms: Facebook Consent (to licence)? iPod effect

Cyberspace Law Centre interest

Unlocking IP projecthttp://cyberlawcentre.org/unlocking-ip/

Interpreting Privacy Principles projecthttp://cyberlawcentre.org/ipp/

‘Mistrust and Malware’ (zombies and DRM)

‘Virtual Worlds, Virtual Communities’

Online User-Generated Content:Characteristics

Traditional framework dominated debate: Active commercial producer, Passive consumers

UGC: often ‘created’ for share or private enjoyment, not revenue

Blurring borders: Personal cf. Commercial use Private cf. Public use

Combined purposes of creation: Political motivation and social criticism, parody and

satire Commerciality? Pure amusement; another kind of ‘personal use’?

Use of copyright material Incidental inclusion (e.g. background music) Creative reconstruction (e.g. appropriation art)

Fair Dealing Exceptions in current Australian Law: Narrow and uncertain?

Copyright Act 1968 (Cth): fair dealing includes uses for purpose of research or study, criticism or review, news reporting, and parody or satire

Pre-2005 amendment, prior to insertion of “parody and satire” exception: conservative and narrow interpretation, detached from consideration of purpose and fairness in user-producer’s perspective

Common law’s restrictive interpretation of fair dealing exceptions: TCN Channel Nine v Network Ten (the Panel case); Hyde Park; Ashdown

Factors likely to influence court’s decision Extent of transformation Type of dealing (commercial versus non-commercial) Whether use would unreasonably prejudice

the legitimate interests of the owner of copyright Integrity and attribution

Largely untested and uncertain?

Fair dealing Exceptions in the US: Possibility of flexibility?

Campbell v Acuff-Rose: Recognition of a valid non-infringing practice of sampling, limited to a “clear and direct parody” of the original copyright material

“Broader” parodies: legal standard is inadequate and uncertain Example: Roger v Koons (parody in the form of an artwork

expressing dissent or criticism of the popular culture in general)

User-Generated Content: Recent action brought by Electronic Frontier Foundation

against Universal, concerning a YouTube video of a child dancing to a Prince song, which is allegedly a copyright infringement of the song

Concern for freedom of expression under US Constitution and abuse of copyright protection by copyright owner (Universal)

Fair dealing exception for copyright owners of materials utilised in UGC

Current approach favours copyright owners While fair dealing exceptions seek to strike a balance

between the rights of copyright owners and reasonable access to copyright material for users, the presumed interests of copyright owners inform definition of “reasonable use”

Approach in The Panel Case shows reliance upon narrow interpretation of statutory language. Similar approach might be taken to consider ambit of “parody and satire”.

Commercial use of UGC Amateur personal content on the web may attain

commercial and public character later The web’s unquantifiable audience: any “private” creation

has the capacity to become subject to commercial and public use

Online UGC may become a commercial tool (e.g. by generating advertising revenue)

Judicial Activism to Preserve User-Producer Interest

Room for judicial activism No clear articulation of legislative intent (parody and satire

not defined in the Act, leaving flexibility for judicial interpretation)

No clear articulation of government policy Known cases where pro-user approach was adopted:

Pro Sieben (UK), Suntrust Bank (US)

Need for judicial activism to preserve user-producer interests in UGC Absence of law protecting freedom of expression and

communication on certain matters.

Meaning of ‘fair dealing’: primary mechanism for ensuring the social good of users’ interests, as copyright regime is directed toward the social good of protecting owner’s interest

Current interpretation of “fairness” can be ‘unfair’ Many UGC items are created for primarily non-commercial

private purposes: e.g. amusement, display of “cleverness” Most UGC do not compete for market share with the

original copyright material featured in the UGC; rather, commercial benefit may even be expected from some of such uses

Rationales for applying fair dealing principles to UGC within the copyright scheme:

UGC may be an instance of socially useful creativity UGC may be a mode of “use and enjoyment” of copyright

material, which is a public interest endorsed by copyright law

Unequal balance of power between UGC creators and copyright owners

Measures by copyright owners, such as cease-and-desist notices and pressure on ISPs to remove offending content, eschew concerns for public accountability and court scrutiny

Facebook Terms of Use By posting User Content to any part of the Site, you

automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display,

reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise,

on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other

works, such User Content, and to grant and authorize sublicenses of the foregoing.

Understood? Facebook © 2008

Consent? Expectations?

Consent as gold standard for authorisation

Express?Informed?Voluntary?Revocable?(Limited to purpose?)(not sub-licensed?)

The iPod effect

Most uses of iPod illegal until late 2006Even now, if you copy AIFF from CD

you infringeTo and from Apple Lossless arguably

OK?Young population raised on non-

enforcement, unenforceabilityFoundation of disrespect