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
http://cyberlawcentre.org/unlocking-ip/
Interpreting Privacy Principles project
http://cyberlawcentre.org/ipp/
‘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 nonenforcement, unenforceability
Foundation of disrespect