User-Generated Content: ‘fair dealing’ on unfair terms? David Vaile (drawing on work by Sophia Christou and Alana Maurushat) Cyberspace Law and Policy Centre For AIMIA 27 May 2008

Contents  Fair dealing exceptions in current Australian Law  Fair dealing exceptions in US  Characteristics of User-Generated Content  Fair dealing exceptions for copyright owners  Fair dealing exceptions for user-producers of UGC: Judicial activism anticipated  Example of terms: Facebook  Consent (to licence)?  iPod effect

Cyberspace Law Centre interest  Unlocking IP project  Interpreting Privacy Principles project  ‘Mistrust and Malware’ (zombies and DRM)  ‘Virtual Worlds, Virtual Communities’

Online User-Generated Content: Characteristics  Traditional framework dominated debate: Active commercial producer, Passive consumers  UGC: often ‘created’ for share or private enjoyment, not revenue  Blurring borders:  Personal cf. Commercial use  Private cf. Public use  Combined purposes of creation:  Political motivation and social criticism, parody and satire  Commerciality?  Pure amusement; another kind of ‘personal use’?  Use of copyright material  Incidental inclusion (e.g. background music)  Creative reconstruction (e.g. appropriation art)

Fair Dealing Exceptions in current Australian Law: Narrow and uncertain?  Copyright Act 1968 (Cth): fair dealing includes uses for purpose of research or study, criticism or review, news reporting, and parody or satire  Pre-2005 amendment, prior to insertion of “parody and satire” exception: conservative and narrow interpretation, detached from consideration of purpose and fairness in user-producer’s perspective  Common law’s restrictive interpretation of fair dealing exceptions: TCN Channel Nine v Network Ten (the Panel case); Hyde Park; Ashdown  Factors likely to influence court’s decision  Extent of transformation  Type of dealing (commercial versus non-commercial)  Whether use would unreasonably prejudice the legitimate interests of the owner of copyright  Integrity and attribution  Largely untested and uncertain?

Fair dealing Exceptions in the US: Possibility of flexibility?  Campbell v Acuff-Rose: Recognition of a valid non-infringing practice of sampling, limited to a “clear and direct parody” of the original copyright material  “Broader” parodies: legal standard is inadequate and uncertain  Example: Roger v Koons (parody in the form of an artwork expressing dissent or criticism of the popular culture in general)  User-Generated Content:  Recent action brought by Electronic Frontier Foundation against Universal, concerning a YouTube video of a child dancing to a Prince song, which is allegedly a copyright infringement of the song  Concern for freedom of expression under US Constitution and abuse of copyright protection by copyright owner (Universal)

Fair dealing exception for copyright owners of materials utilised in UGC  Current approach favours copyright owners  While fair dealing exceptions seek to strike a balance between the rights of copyright owners and reasonable access to copyright material for users, the presumed interests of copyright owners inform definition of “reasonable use”  Approach in The Panel Case shows reliance upon narrow interpretation of statutory language. Similar approach might be taken to consider ambit of “parody and satire”.  Commercial use of UGC  Amateur personal content on the web may attain commercial and public character later  The web’s unquantifiable audience: any “private” creation has the capacity to become subject to commercial and public use  Online UGC may become a commercial tool (e.g. by generating advertising revenue)

Judicial Activism to Preserve User-Producer Interest  Room for judicial activism  No clear articulation of legislative intent (parody and satire not defined in the Act, leaving flexibility for judicial interpretation)  No clear articulation of government policy  Known cases where pro-user approach was adopted: Pro Sieben (UK), Suntrust Bank (US)  Need for judicial activism to preserve user-producer interests in UGC  Absence of law protecting freedom of expression and communication on certain matters.  Meaning of ‘fair dealing’: primary mechanism for ensuring the social good of users’ interests, as copyright regime is directed toward the social good of protecting owner’s interest

 Current interpretation of “fairness” can be ‘unfair’  Many UGC items are created for primarily non-commercial private purposes: e.g. amusement, display of “cleverness”  Most UGC do not compete for market share with the original copyright material featured in the UGC; rather, commercial benefit may even be expected from some of such uses  Rationales for applying fair dealing principles to UGC within the copyright scheme:  UGC may be an instance of socially useful creativity  UGC may be a mode of “use and enjoyment” of copyright material, which is a public interest endorsed by copyright law  Unequal balance of power between UGC creators and copyright owners  Measures by copyright owners, such as cease-and-desist notices and pressure on ISPs to remove offending content, eschew concerns for public accountability and court scrutiny

Facebook Terms of Use  By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an  irrevocable,  perpetual,  non-exclusive,  transferable,  fully paid,  worldwide license (with the right to sublicense)  to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and  distribute such User Content  for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof,  to prepare derivative works of, or incorporate into other works, such User Content, and to  grant and authorize sublicenses of the foregoing.  Understood? Facebook © 2008

Consent? Expectations?  Consent as gold standard for authorisation  Express?  Informed?  Voluntary?  Revocable?  (Limited to purpose?)  (not sub-licensed?)

The iPod effect  Most uses of iPod illegal until late 2006  Even now, if you copy AIFF from CD you infringe  To and from Apple Lossless arguably OK?  Young population raised on non- enforcement, unenforceability  Foundation of disrespect