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At the end of March I was invited speaker at a workshop on “Balancing Intellectual Property Claims and the Freedom of Art and Communication” at Bielefeld University’s Center for Interdisciplinary Research (ZiF). My talk was mainly based upon thoughts sketched out in two posts from the series on “Algorithm Regulation” on this blog:

Please find a video auf my talk and the respective slideshare embedded below:

Slides:

 

(leonhard)

The dreadful state of copyright law in the digital age can be nicely illustrated by a thought experiment.* If one thinks back to 1980, it is hard to imagine how one could have committed a copyright violation with a book, an LP or a reel of film. Lending the book to a friend, duplicating parts – or even the whole book – on a photocopier, or staging a reading were all possible without clarifying rights. While copyright was already a complex matter at that time, until the internet it played little role in most people’s everyday lives.

Cover of the reader on "The Digital Society" by the Friedrich-Ebert-Foundation

Cover of the reader on “The Digital Society” by the Friedrich-Ebert-Foundation

Today everything is different. Anyone who uses a smartphone to video everyday experiences and share them with friends in a personal blog will hardly be able to avoid violating copyright. A couple of seconds of music or a poster in the background will suffice if “making publicly available” in the internet violates copyright. Many of the most creative digital artforms, such as remix and mashup, are almost impossible to disseminate by legal means, still less to commercialise. The use of even the briefest music or video sequence must be legally clarified, and in most cases this is much too complicated and expensive. Libraries, museums and archives battle with similar problems, preventing them from digitising their holdings.

Introducing a Right to Remix?

Apart from shorter copyright periods, there would be two other sensible approaches to solving this problem. Firstly, a European harmonisation and expansion of the catalogue of copyright limitations and exceptions would be sensible. The introduction of a de minimis or remix exemption modelled on the fair use clause in US copyright, combined with the forms of flat-fee reimbursement established in Europe, would enable new forms of recreational and remix creativity. Even for commercial publication of remixes and mashups all that would be required is to notify the relevant copyright collecting society (as is already the case for cover versions), in place of the complicated and expensive process of clarifying rights. Secondly, the establishment of a European register of works would simplify clarification of rights and restrict ongoing copyright protection (after an initial period) to cases where works are in fact still in commercial circulation.

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In the series “algorithm regulation”, we discuss the implications of the growing importance of technological algorithms as a means of regulation in the digital realm. 

In the last entry of this series I have described how YouTube’s Content ID system effectively re-introduces registration requirements into copyright, even though international treaties such as the Berne Convention forbid such requirements. With its most recent additions to YouTube’s rights management infrastructure, YouTube owner Google brings the former’s rights clearing services to a whole new level.

Previously, creators using copyrighted material such as contemporary pop music in one of their videos could only try to upload their videos and hope for the best (i.e. no recognition by the Content ID algorithm) or the second best (i.e. recognition by the Content ID algorithm but acceptance/monetization by rights holders). In any case, creators could only definitely know after making and uploading a video whether and how YouTube’s algorithms would react.

In a recent blog post, YouTube has announced substantial changes to this system:

But until now there was no way to know what would happen if you used a specific track until after you hit upload. Starting today, you can search the YouTube Audio Library to determine how using a particular track in your video will affect it on YouTube, specifically if it will stay live on YouTube or if any restrictions apply. You can uncross those uploading fingers now!

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In the series “algorithm regulation”, we discuss the implications of the growing importance of technological algorithms as a means of regulation in the digital realm. 

The most important international copyright treaty, the Berne Convention for the Protection of Literary and Artistic Works, is quite clear with regard to registration requirements for copyright protection in its Article 5 (2)

“The enjoyment and the exercise of these rights shall not be subject to any formality”

copyright-symbol

The copyright symbol in Arial

In other words, for the 168 countries covered by the Berne Convention, registration provisions are not an option.* In the digital era, this ban is unfortunate for a number of reasons: Read the rest of this entry »

It is well known that YouTube serves as a platform for a huge variety of educational material. Most prominently, Salman Kahn (“Khan Academy“) began his career as a provider of Massive Open Online Courses (MOOC) by posting teaching videos on YouTube.

In addition to educational material on all kinds of topics provided by third parties, Google increasingly engages in the production of its own educational content to improve the quality of user-generated content published on its platform. Google’s obvious calculation: better videos means more views means more ad revenue.

Initially, however, Google’s first educational videos were in mere self-defense against countervailing accusations with relation to copyright infringement on its platform. While rights holders complained and blocked unauthorised use of their content, users protested against respective deletion of their accounts (see “Private Negotiation of Public Goods: Collateral Damage(s)“) . In this situation, Google launched its “YouTube Copyright School”, which so-called “multiple infringers” have to watch to re-open their account (see “Crazy Copyright Cartoon: The YouTube Copyright School“).

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In the series “algorithm regulation”, we discuss the implications of the growing importance of technological algorithms as a means of regulation in the digital realm. 

Yesterday, YouTube proudly announced on its blog that it had improved its “Content ID” system, which allows rights holders to automatically detect uploaded content that contains potentially infringing works, by introducing a new appeals process:

Users have always had the ability to dispute Content ID claims on their videos if they believe those claims are invalid. Prior to today, if a content owner rejected that dispute, the user was left with no recourse for certain types of Content ID claims (e.g., monetize claims). Based upon feedback from our community, today we’re introducing an appeals process that gives eligible users a new choice when dealing with a rejected dispute. When the user files an appeal, a content owner has two options: release the claim or file a formal DMCA notification.

In addition, YouTube claims to have made its algorithms “smarter” to reduce the number of unintentional Content ID claims:

Content owners have uploaded more than ten million reference files to the Content ID system. At that scale, mistakes can and do happen. To address this, we’ve improved the algorithms that identify potentially invalid claims.

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In their book “Information Feudalism” (2002), Peter Drahos and John Braithwaite argue that the “danger of intellectual property lies in the threat to liberty” (p. 3). Also Jamie Boyle, in his open access book “The Public Domain” (2008, PDF) warns against the potential of strong copyrights to interfere with some of the most basic human rights such as free speech. Only rarely, however, these dangers become so clearly visible as in the current controversy around a Greenpeace campaign video.

It all started with a very successful Superbowl commercial by VW, featuring a child as Darth Vader and being enormously successful on YouTube with over 40 million viewers so far:

Inspired by this commercial, Greenpeace created a parody featuring several kids playing other famous Star Wars characters and attacking VW for its CO2 policies on the campaign website www.vwdarkside.com. When today I wanted to see the video embedded at the site, I however only encountered the message delivered by YouTube that the video was not available due to copyright infringement (see screenshot below). Read the rest of this entry »

A few days ago, the German collecting society GEMA was criticized by CEOs of leading music labels such as Universal or Sony Music for not being able to negotiate an agreement with Google, the owner of YouTube, that would allow their music videos to be featured on the site (see “Cracks in the Content Coalition: Corporations vs. Copyright Collectives“).  Today the German branch of the hacktivism group Anonymous weighed in and launched a campaign against GEMA (see the video message below).

At the time I am was writing this post, the GEMA homepage is was down, most likely because of a distributed denial-of-service attack – the standard form of online protest organized by Anonymous. The rationale for the attack given in the video explicitly refers to the recent criticism by major label representatives and reads as follows (my translation): Read the rest of this entry »

In April this year, broadcasters, collecting societies, and representatives of the music and film industry in Germany publicly announced the foundation of the “Deutsche Content Allianz” (“German Content Alliance”) at a press conference in Berlin:

Member sof the German Content Alliance

Source: Stefan Krempl / heise.de

Harald Heker, CEO of the leading German collecting society GEMA, even praised the initiative as an “important closing of ranks” among rights holders (via heise.de, German only).

Only two months later, this coalition exhibits some severe cracks. And the reason for these cracks is the extensive blocking of YouTube videos demanded by GEMA – something we have repeatedly discussed on this blog (see, for example, “Viral Web Videos and Blocked Talent” and, most recently, “Art Across Borders“). Originally, blocked videos only delivered a page stating that the video was not available “in your country” and referring to the rights holder – the latter mostly being one of the leading media corporations such as Universal, Warner or Sony. Read the rest of this entry »

"This Painting is Not Available in Your Country" A recurrent theme on this blog is how the seemingly global online world is still  – and in some fields even increasingly – divided by barriers, which are still tied to national borders. In this context, about eight months ago our article “This Post is Available in Your Country” featured a painting by the Hungarian artist Paul Mutant that ironically addressed the omnipresence of blocked video content on the web. Actually, very recently a Berlin based copyright expert told me that, for example, in Germany the majority of videos on YouTube were blocked because of (alleged) copyright infringements.

In an exhibition in the Három Hét Galéria in Budapest, Mutant now takes his idea to the extreme, as is evidenced by the pictures below (all photos provided by the artist).

Wall full of "This painting ..." paintings

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The Book

Governance across borders: transnational fields and transversal themes. Leonhard Dobusch, Philip Mader and Sigrid Quack (eds.), 2013, epubli publishers.
December 2017
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