We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation.
One of the biggest pitfalls in copyright policymaking is to treat creators of copyrighted content as a monolithic entity with identical interests and concerns. When massive entertainment companies ask for dangerous new types of copyright protection, they imply that all artists share the same set of interests (which allegedly line up with those of the big companies themselves). It would be a mistake even to accept the entertainment industry’s interpretation of the will of the artists it represents, let alone extend it to the community of artists in general. Copyright should take into account the needs of artists and creators of all stripes, reflecting the differences among their tactics, their goals, their business models, and how they go about creating new works.
The conflict over copyright between Hollywood and independent artists is perhaps nowhere more pronounced than in the debate over automatic copyright filtering on YouTube and sites like it. Video creators rely on fair use protections every day—especially if their work involves quoting or sampling others’ content for the purposes of criticism, journalism, or education, uses that are protected under the law.
Last year, video creators organized to protest YouTube’s copyright policies—they argued that fear of Content ID takedowns (and of having to navigate YouTube’s arcane repeat infringer system) effectively chilled YouTube artists’ free expression. As popular YouTube personality Doug Walker put it, “I’ve been doing this professionally for over eight years, and I have never had a day where I felt safe posting one of my videos even though the law states I should be safe posting one of my videos.”
YouTubers were successful in convincing Google to make some small but important policy changes (namely, allowing videos to earn revenue while under a copyright dispute, thus ensuring that a bogus dispute doesn’t cut off a creator’s revenue stream), but that victory could be tiny compared to the fight that’s on the horizon.
The RIAA and a host of other entertainment industry groups recently wrote a memo to President-Elect Trump asking for a major overhaul of the safe harbors system in the Digital Millennium Copyright Act (DMCA). Safe harbors protect web platforms that host third-party content from liability for their users’ allegedly infringing content. Without safe harbors, many popular media platforms would look very different from how they look today, or they simply wouldn’t exist.
Although it didn’t make specific demands, the RIAA memo eerily echoes a number of proposals that Hollywood lobbyists have made for weakening safe harbor protections. One such proposal is a filter-everything approach: under filter-everything, websites that host third-party content would be required to run Content ID-style copyright bots. Once a takedown notice went uncontested, the platform would have to block any future uploads of the same allegedly infringing content. Proposals like filter-everything inevitably shift the burden of policing copyright infringement (or at least some of that burden) from copyright owners to the web platforms themselves. In doing so, they effectively incentivize platforms to give copyright owners the upper hand in any dispute. Moreover, legally mandated filters could compromise fair use. As we’ve said before, copyright bots can be a helpful tool, but they’re no substitute for human analysis.
Ultimately, when big content companies demand weaker users’ rights or brand new types of copyright protection, they make a crucial miscalculation. They assume that their large budgets earn them super-copyright powers—that is, that lawmakers must protect their rights to the detriment of other creators, users, and platforms because their content is so expensive to produce. It doesn’t work that way. As Tim Cushing pointed out, Hollywood’s logic would suggest that a ticket to Avatar should cost 90,000 times more than a ticket to Paranormal Activity.
Independent creators of all types can play an essential role in pushing for fairness in copyright law. Lawmakers need to balance the needs and rights of everyone, including small creators and users. When entertainment companies claim to represent the will of artists, Congress hears only a fraction of the story.