Web 2.0 – A challenging Landscape For Copyright
Copyright owners face an increasing threat online, as the latest “Web 2.0” technology brings ever more opportunities for infringement.
Social networking sites, user-generated content (UGC), multimedia functionality – all are common features of the internet, and all offer scope for breaching copyright.
The threat is perhaps best summed up by the following comment about Web 2.0, which I found online: “It’s about pulling information out of proprietary containers and moving from a one-to-many publishing model, to many-to-one.”
There is now a plethora of sites offering users the chance to upload content with little, if any, prior editorial restraint.
Social networking sites abound, displaying all sorts of copyright material, including text, photographs, music and videos, without permission from copyright owners.
With so many self-publishers recycling other people’s material online, an important question arises. Are service providers liable if they host copyright-infringing UGC, posted by users?
Take the example of video-sharing site YouTube. What is the potential liability of individual users, and the website itself?
YouTube has ‘Terms of Use’, applicable in UK, which require users to grant it a worldwide licence to use and distribute their UGC on the website. These Terms of Use state that each user is “solely responsible for all activity that occurs” on an account, and they also include a Copyright Infringement Notification procedure – for the rapid removal of infringing content.
Users notified of “infringing activity” more than twice will have their access terminated as “repeat infringers”.
Users are personally liable if they post unauthorised copyright material on the website. But they may be difficult to trace, and not worth suing if they have insufficient money to pay damages.
As for the liability of YouTube itself, English law does not impose any obligation on websites to actively monitor UGC to check for copyright-infringing material. (The position is less straightforward as regards liability for defamatory UGC – but that’s a separate matter.)
So, YouTube may have an arguable defence to a copyright infringement claim (in Europe at least) until such time as it has been properly notified that it is hosting infringing content.
The E-Commerce (EC Directive) Regulations, in force in UK since 2002, give certain service providers a handy defence against “civil or criminal sanction” (including copyright infringement claims) if they are merely conduits for the transmission of others’ copyright information, or if they merely cache or host copyright-infringing UGC without being aware they are doing so. YouTube may be able to persuade a court that its service is of the type protected by the Regulations.
However, in order to avail itself of this defence, a service provider must take down the infringing content “expeditiously” once it has become aware of that content – or else incur liability itself.
In other words, if YouTube were made aware of infringing material but failed to remove it, it could be held jointly liable for the copyright infringement, together with the individual user who posted it.
YouTube appears to have kept itself clear of the courts in Europe. But in America, it has found itself in hot water. In March 2007, MTV’s owner, Viacom, filed a $1bn lawsuit against it, claiming “massive intentional copyright infringement” in relation to more than 160,000 copyright TV clips which have allegedly appeared on the video-sharing site.
The claim involves television broadcasts recorded by users and uploaded to YouTube as UGC. Viacom claims YouTube’s methods mean that copyright-infringing content generates significant traffic and revenue for YouTube whilst shifting the burden and cost of monitoring it on to copyright owners.
In response, YouTube has reportedly accused Viacom of threatening “the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression” with its lawsuit.
YouTube’s defence is understood to rely on ‘fair use’ arguments and the so-called ‘Safe Harbor’ provisions of the US Digital Millennium Copyright Act which, like the UK’s E-Commerce Regulations, arguably allow certain website operators to avoid liability for copyright infringing content posted by users if they take it down once they are notified it exists.
Viacom is reported to be distinctly unimpressed that YouTube, owned ultimately by Google whose mission is to organise all the world’s information, claims to be unable to find infringing content posted on its pages without receiving specific notification.
Watch that space. A case management hearing was set for late July 2007, with a possible trial further down the line.
In summary, the law is still embryonic, and the position regarding liability for copyright-infringing UGC is perhaps best described as dynamic.
As Web 2.0 forges ahead, the internet is increasingly about accessing, copying and redistributing others’ content to millions of people free of charge, without permission.
In the new virtual landscape, copyright owners need to keep tabs on unauthorised use of their work, weigh up the technical defences that may be available to alleged infringers, and decide what practical outcome they hope to achieve in pursuing a complaint.
If their work is commercially valuable such that damages for infringement may be substantial, it may be worth suing.
Alternatively, it may be more cost-effective to rely on purely practical solutions, including ‘take down’ procedures.
