ConnectedFuture.org

Crowdsourced Agenda for Free Expression

Respect Creators 2: Promote approaches to copyright that allow creators broad scope for fair use / fair dealing

RESPECT CREATORS 2: PROMOTE APPROACHES TO COPYRIGHT THAT ALLOW CREATORS BROAD SCOPE FOR FAIR USE / FAIR DEALING

As noted above, changing business models mean that sharing work freely is often desirable for knowledge and culture creators - hence the rapid growth in the use of Creative Commons licenses, from 50 million in 2006 to over 450 million in 2011.36 While Creative Commons licenses allow for a great degree of customization and flexibility (see Box 1), the fundamental component of all the licenses is attribution, or giving credit for the original creation.

Box 1: Creative Commons Licenses

Creative Commons (CC) is a non-profit organization that creates its own licenses to provide a more balanced approach to copyright. By creating flexible licenses, CC gives content creators and users more freedom when it comes to sharing and remixing works. The licenses serve as a positive alternative to current copyright rules, which focus on punishing acts of sharing, as opposed to supporting online collaboration. By using CC licenses,35 you, as a creator of content, can make it clear that you would like to be acknowledged, and communicate ways you would like the public to reuse your work – you can choose to permit derivatives and commercial uses, and can insist that any reuses of your work are also themselves CC licensed. Not only do these licenses let Internet users know what rights the creator has given them, they also encourage innovative knowledge reproduction and distribution, making our online culture richer and more interactive.

This was also a principle of sharing online that the participants in “Our Digital Future” strongly supported – 89.2 percent of 9,020 respondents to the question in our drag-and- drop tool said that when using the content of others online, we should always give credit to the creator of the work.37 As the Authors Alliance, which represents the interests of authors who favour accessibility and dissemination, notes, attribution serves not only the author’s or creator’s interest, “but also the reading public’s interest in knowing whose works they are consuming and society’s interest in an accurate record of the intellectual heritage of humankind.”38 Yet again, we see evidence that Internet users want this kind of healthy culture of sharing – the majority of users in our crowdsourcing process want to ensure that creators receive credit.

One challenge with regards to Creative Commons and current copyright law is that notice-and-takedown regimes often rely on automation: many copyright holders use catch-all style systems, such as YouTube’s ContentID (see Box 2) or the MPAA’s list of infringing terms, that result in creators who use Creative Commons having their works summarily removed from the Internet, and from their largest potential audience. For example, popular (and now defunct) torrent site isoHunt was forced to use a site-wide keyword filter provided by the MPAA, which included word combinations like “The Kingdom” and “The Heat.”39 Along with copyrighted works, this filter blocked content from independent artists like musician Elliot Wallace and film-maker Brian Taylor, whose CC licensed works triggered the overly broad & generic keyword filters. To quote Taylor: “My original material being blocked in the US hurts my chances of: being discovered, making money, making more art.”40 Companies like Microsoft use similar automated systems to send takedown notices to Google, removing links to their open source competitor OpenOffice,41 blocking access to one of the only real alternatives to their expensive software.

The scope of these types of claims is mind-boggling: Google receives requests to remove tens of millions of URLs each month.42 Even well-known Internet freedom and free expression advocates Corey Doctorow and Lawrence Lessig have been the targets of this kind of system. In Doctorow’s case, his novel “Homeland” was ordered taken down from Google by Fox, the copyright holder of a television show also called “Homeland.” Doctorow noted: “The DMCA makes it easy to carelessly censor the Internet, and makes it hard to get redress for this kind of perjurious, depraved indifference.”43

The proliferation of dubious copyright claims is not just catching Creative Commons licensed works in a dragnet, it is also sweeping up other legitimate instances of shared copyrighted works, such as those protected under fair dealing or fair use. In Lessig’s case, one of his lectures was removed from YouTube after a takedown notice from Liberation Music, regarding clips of the song “Lisztomania” of which Liberation is the copyright holder. As the Electronic Frontier Foundation (EFF), which represented Lessig in the lawsuit he filed against Liberation, explains, this was a “classic example of fair use, [as] the clips were used to highlight emerging styles of cultural communication on the Internet.”45 Liberation Music settled with Lessig for an undisclosed amount, and also revealed their takedown system: they had allowed a single employee to use YouTube’s automatic ContentID system to start the takedown process, and then to threaten a lawsuit when Lessig challenged the takedown. The employee did not have a legal background, and did not actually review Lessig’s video before threatening a lawsuit.46 Liberation agreed to change this policy to include human review and fair use considerations, but clearly it is not reasonable to expect Internet users to take every single rights holder to court to force them to adopt what may be only a moderately better system.

This is yet another strong piece of evidence that notice-and- notice style copyright regimes are much more respectful of creators. In a powerful article titled “Why I No Longer Give Away My Music for Free,” digital musician Bob Ostertag notes:

“It is strongly in the interest of the big corporate labels to over-detect rather than under-detect. The result is a system in which the interest of the handful of superstars of the world in not missing out on a penny of their millions in royalties trumps the interest of the vast majority of musicians in getting their music heard.”47

Ostertag, who makes his income off of concerts and was licensing his recorded work under Creative Commons in order to reach new audiences, cites numerous instances of “netbots,” or automated takedown systems, unjustly removing the content of musicians who are “trying unsuccessfully to give away their music for free.”48 As he observes, these musicians have few resources, in terms of time or money, to fight unjustified takedown notices. The problem with putting in place an automated takedown procedure is, first, that these systems do not differentiate between true copyright infringement versus fair dealing, fair use or Creative Commons-licensed works that incidentally resemble copyrighted works. Second, these systems place an unfair burden on emerging artists to fight takedown notices and, as Ostertag notes, are a disincentive to using the Creative Commons.

As Article 19 states in its principles on copyright and free expression: “Measures such as Creative Commons, whereby creators waive some of their rights in their works, allow greater access to culture for the wider public and should therefore be promoted.”49 Given the value of Creative Commons, and the harm that automated takedown procedures are doing to the creators who employ it (and/or fair use/fair dealing) the “Our Digital Future” project strongly favours notice-and-notice over notice-and-takedown. In light of the effectiveness of notice- and-notice systems50 (see Recommendation Two for a fuller discussion), the evidence clearly shows that they are superior to notice-and-takedown – particularly when takedown procedures rely on the impersonal, anonymous automated systems described here.