Legal models for online content enforcement

In December, I gave a talk in London for Screen South entitled “Creative Commons Legal Models” for a group of content producers, mostly film/video, internet content, authors, and computer game creatives. In it, I made this basic point:

Look at your copyright in terms of your overall strategy

Not a particularly groundbreaking insight but an important one that often gets overlooked. With this in mind, I concentrated on the role of Creative Commons within an online copyright strategy in terms of enforcement of rights, and was mostly considering the choices available to small and medium sized enterprises (SMEs) providing content online.

I’ll be exploring this area more in this blog and in some upcoming academic research, so this is really a beginning of a conversation about copyright enforcement, the internet, and open content models.

In the presentation, I broke online copyright enforcement down into 4 groups:

1. Public domain strategies. Examples include US Government produced works, certain areas of Crown Copyright, and the new Science Commons protocol together with CCZero and the Open Data Commons project.

2. Some rights reserved. The open content licensing approaches including projects such as Creative Commons and Creative Archive.

3. All rights reserved with ‘light’ enforcement. The licensed distributors of anime, particularly in North America, is an example of this approach. The BPI in the UK until recently could be said to have taken this approach as well.

4. All rights reserved with ‘heavy’ enforcement. The RIAA/MPAA lawsuits in the US, and current BPI activities in the UK.

From an enforcement perspective, I think the above four look like this (based on the CC graphic below):

Just to establish a baseline for the discussion, I’ve included a brief description of copyright and how it relates to the internet before discussing the four strategies.

Copyright basics

Briefly, copyright generally arises as soon as a work meeting the requirements for a copyright gets created. No registration necessary. Copyright generally operates on the permission principle, where unless a specific exception is present people other than the owner of the copyright will need permission to do things such as copy, distribute, make adaptations, or publicly perform a work. Because of several international treaties, copyrighted works will usually be protected throughout most of the world without registration either.

Copyright and the internet

The internet extends across all jurisdictions. Copyright requires permission (unless covered by an exception) and offers worldwide protection: This means that really neat photograph taken by an Australian tourist while on holiday in Dubai that you found on Google almost certainly has a copyright enforceable in your home town of Glasgow.

1. Public domain strategies.

The new Science Commons protocol for data, which will be implemented by CCZero and is implemented by the Open Data Commons project, uses this approach. The Open Data Commons Public Domain Dedication and Licence (which I helped draft with the support of Talis) places the database in the public domain (no copyright or database rights) and asks in the Community Norms statement for a voluntary code of conduct with the data. The enforcement model relies on social pressure rather than legal action.

Bottom line — give everyone on the whole planet the right to use your content and shrug your shoulders if they do something you don’t like with it.

2. Some rights reserved.

This is the approach typified by Creative Commons, but applies to other liberal licensing schemes.

CC spectrum graphic — CC-BY and available here.

Of course from a licensing perspective most licences (as opposed to assignments) are “some rights reserved” because they give over some rights — such as North American distribution — and keep others — European distribution.

You can think of copyright (and other IP rights) as a bundle of sticks. Each stick represents an individual aspect of copyright, like the right to create an adaptation, or the right to distribute a work. What at first glance could be a really broad right such as distribution can be thought of as a bundle of sticks all in themselves. You can break up the right to distribute only via the internet (and not at physical retail outlets). You could license the right to distribute in physical form (such as CDs) worldwide or you could break this right up geographically by jurisdiction, such as distribution rights in Europe but not North America or UK only.

Licences are how these sticks get broken up and handed over to others. An assignment gives the entire bundle over to another.

Creative Commons licences give a set group of broad permissions up front and have a mix and match set of restrictions, including:

Non-commercial (NC) — no use of the work for commercial purposes.
No-derivatives (ND) — users can’t modify the work.
Share alike (SA) — users can modify the work, but the new modified work must use the same licence as this work.

This licensing strategy means that anyone coming across your content knows up front — without having to send you a request for permission — what they can and can’t do with a work. A Creative Commons Attribution Non-Commercial (CC-BY-NC) work means that you can do pretty much anything along as it isn’t commercial use and you attribute the author. Of course you need to read the licence in order to get the full details.

Bottom line — Give permission for a wide variety of uses of your work up front but still require permission for some uses (such as commercial use). You can enforce the terms of the licence (such as requiring that users attribute you properly) and can enforce for rights not granted (such as commercial use of non-commercial CC licensed content).

3. All rights reserved with ‘light’ enforcement.

I studied this approach in depth in 2005 with my work on anime fansubs (paper available here and here). In a nutshell, the North American distributors of Japanese animated television and films (anime) don’t sue or use other litigation-oriented legal tactics (such as notice and take down letters under the DMCA in the US) the creators of fansubs.

Fansubs stands for “fan subtitled’ and describes exactly that: groups of fans collaborating over the internet to acquire raw Japanese-language anime (TV broadcasts), translate and subtitle it (usually to English), and release it out for distribution over p2p networks or IRC. Fansubs violate the copyrights involved, but also at one time formed the foundation for the popularity of anime and may currently benefit the industry.

Licensed distributors of anime tend to go to anime conventions and describe why fansubbing is no longer necessary. They also announce licences for North American distribution to the fansub community, who by and large stop fansubbing once they know that an official version is imminent (as they want to support the licensed distributors). The good relations between the two groups help facilitate compliance. Though I didn’t examine it in detail in my paper, I imagine that licensed anime distributors are much stricter on enforcement for counterfeit DVDs and other directly commercial areas.

This approach comes under the “all rights reserved” heading because neither the content producers (Japanese TV stations) or the licensed distributors give explicit permission for fansubbing via a licence.

Bottom line — Don’t give permission up front via a licence for use of your work but enforce your copyright selectively, perhaps allowing most of the uses that would be covered by a Creative Commons licence using the Non-Commercial element.

4. All rights reserved with ‘heavy’ enforcement.

The Recording Industry Association of America (RIAA) and the Motion Picture Association of America both favour this approach, which involves filing 1,000’s of lawsuits against people using p2p networks to illegally share music. This approach involves lots of lawyers and therefore lots of money and has been widely criticised as “suing their own customers” and ending up with a Pyrrhic victory of winning on the law but losing commercially. For more on the ongoing litigation, see here.

Bottom line — Don’t give permission up front and enforce at almost every opportunity.

What is the right strategy for SME online content creators?

It depends.

I’ll start with the above answer — favourite of law students and lawyers everywhere — because everyone should note that one single strategy will not work for everyone and that even within one company you can use different strategies for different content or even use different strategies over the life of one single piece of content.

However overall I think that a some rights reserved strategy or an all rights reserved with light enforcement approach will be the core range of choices.

Why not heavy enforcement?

I don’t think that most organisations providing online content have the resources to engage in the heavy enforcement strategies of the RIAA/MPAA, nor do they produce the kind of hit content that will keep large audiences coming back to them even if they get negative PR for doing heavy enforcement.

Organisations should also consider their enforcement within a global context — going after that unauthorized use in Canada presents lots of problems for a small content company in Cardiff. The same unauthorized use in Ireland might be much easier to stop. It may make even more sense to concentrate enforcement resources on counterfeits and other directly commercial activities rather than on remixes of your work or other unauthorised uses by your fans.

Why not the public domain?

For most SMEs, the public domain strategy probably won’t be an option for the majority of what they produce. This means placing the work totally in the public domain and giving up any rights to the work forever, which I think may be too hard a choice for many creators. I also don’t think that it’s likely to work because content producers would often monetize their content by

  • Being an exclusive or preferred source for the content and selling advertising
  • Selling the content itself to others (TV networks, Film distributors, Atom Films, and so on)

Placing work in the public domain could however be a part of a strategy that sees some content as a “loss leader” that attracts viewers for other content, but a Creative Commons or similar licensing approach would work just as well (or even better) than dedicating to the public domain.

Think about the eyeballs

Most content creators want popularity for both monetary and personal reasons. If a college kid in Portland, Oregon remixes your video in a funny way, then at least someone thought it worthy of remixing, and as a result will likely send more visitors your direction. Look at each use and if it harms your content, then think about enforcement: if it helps, think twice about sending that cease and desist letter.

Some content producers forget that the goal of finding an audience (preferably a large one) often means getting popular first. And getting popular may mean taking a relaxed attitude towards unauthorised use.

Further comments on 2. Some rights reserved.

The some rights reserved approach itself can further break down into light and heavy enforcement variants. You can send just as easily file lawsuits against any commercial use if you use a Creative Commons NC licence along the same lines as the RIAA/MPAA. You could also take a lighter touch and send non-threatening emails requesting compliance. But many people in the community of users of Creative Commons have very definite ideas about the need for copyright reform and the use of heavy-handed enforcement tactics, so this should be considered as well.

The overall bottom line — Most SME content providers will probably want to take either a some rights reserved approach by using a Creative Commons licence or will want to take a light enforcement approach with their content.


What do you think?

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