Google’s report card on tackling copyright infringement 28/09/2011

After announcing four initiatives to combat online copyright infringement last December, Google delivered its report this month, claiming “significant progress” on each initiative, with further effort to come. The four areas, along with a progress report [1] on each, are listed below:

 

(i) Google Commitment: To a quick turnaround time (24 hours of less) and more streamlined processes for legitimate DMCA takedown and counter-notification requests. This would allow rights-holders that discover unauthorised material to get it removed in a faster period of time.

 

Progress Report: “We built the tools earlier this year, and they are now being successfully used by more than a dozen content industry partners who together account for more than 75 per cent of all URLs submitted in DMCA takedowns for Web Search. Our response time for these partners is now well below the 24-hour target. In the coming months, we will be making these tools available more broadly to those who have established a track record of submitting valid takedown requests.”

 

(ii) Google commitment: To prevent terms that are closely associated with piracy from appearing in Autocomplete.

 

Progress Report: “Beginning in January, we started filtering terms closely associated with infringement from Google Autocomplete, our feature that predicts search queries based on popular searches from other users.”

 

(iii) Google commitment: Increased efforts to disqualify those using Google advertising on pages with infringing material. Many rights-holders had complained that a number of websites were able to attract people by offering access to unauthorised content whilst using Google’s Ad-Words system to make money from the visitors.

 

Progress Report: “We have always prohibited [this]…and we have worked hard to improve our internal enforcement procedures. In April, we were among the first companies to certify compliance in the Interactive Advertising Bureau’s Quality Assurance program, through which participating advertising companies will take steps to enhance buyer control over the placement and context of advertising and build brand safety. In addition, we have invited rightsholder associations to identify their top priority sites for immediate review, and have acted on those tips when we have received them.

 

(iv) Google commitment: A development focus on processes for better indexing and discovering legitimate material online.

 

Progress Report: “We have launched Music Rich Snippets, which allow legitimate music sites to highlight content in the snippets that appear in Google’s Web Search results. Rhapsody and MySpace are among the first to implement this feature, which has been developed using open web markup standards, and we are looking forward to more sites and search engines marking up their pages. We hope that authorized music sites will take advantage of Music Rich Snippets to make their preview content stand out in search results.”

 

The closing statement on the blog by Google’s Kent Walker is: “There is plenty more to be done, and we look forward to further refining and improving our processes in ways that help both rightsholders and users.” [2]

 

[1-2] Kent Walker, Google Public Policy Blog at: http://googlepublicpolicy.blogspot.com/2011/09/making-copyright-work-better-online.html

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Canadian universities withdraw business from collecting society 28/09/2011

Dozens of colleges and universities in Canada have opted out of negotiations with Access Copyright on a new fee for copying protected works. But the Copyright Board of Canada has suggested that the tertiary institutions may be required to answer questions about their usage, now that they no longer have a broad licence in place.

 

Prior to opting out, the tertiary institutions paid fees to Access Copyright for extensive copying permissions, with the fees then distributed to the authors and publishers of the works copied. The withdrawal from this arrangement, after a long and productive relationship, follows an application by Access Copyright to the Copyright Board of Canada for a flat per student fee to be paid by the tertiary institutions (with Access starting the negotiations at $45 per student). Previously, the charge was $3.38 per student plus 10 cents per copy. [1]

 

Other issues in the dispute besides the increased tariff involve requests by Access Copyright for greater access to the institutions’ documentation of usage of protected works. [2]

 

Universities hope to be able to meet their requirements for course materials through: (i) use of open access materials (ii) alternative licensing arrangements with publishers or distributors (iii) greater reliance on the ‘fair use’ provisions in Canadian copyright law.

 

However, the Copyright Board of Canada suggested in a recent ruling that if the tertiary institutions failed to provide information about the materials they were using in their courses, they might be subpoenaed to do so. [3]

 

Further, in a ruling delivered on September 23, the Copyright Board rejected an application by the Association of Universities and Colleges of Canada (AUCC) for the Board to force Access Copyright to licence the single use of a single work (transactional licence) by institutions that do not avail themselves of the full-time equivalent student licence (where a payment is made per year per full-time student).

 

The Board gave a number of reasons for its rejection of the AUCC application, including the following: “Though the reporting difficulties associated with digital transactional copying in institutions may not be as formidable as Access paints them, they are nonetheless significant. Earlier in these proceedings, AUCC admitted that the value of a digital licence can be “undermined by onerous record keeping provisions that, in a university setting, are impractical or impossible to meet’.” [4]

 

[1-2] CTV News at: http://www.ctv.ca/CTVNews/Canada/20110915/profs-ditch-course-material-over-copyright-confusion-110915/

[3] Canadian Lawyer at: http://www.canadianlawyermag.com/3843/copyright-board-warns-universities-they-cant-dodge-copying-tariff.html

[4] Canadian Copyright Board at: http://www.cb-cda.gc.ca/decisions/2011/20110923.pdf

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Orphan works and extended collective licensing top UK reform schedule 25/08/2011

by Mary Anne Reid

Australian Copyright Council

 

The UK Government, in its response to the Hargreaves Review of the country’s intellectual property framework, has set what appears to be a cracking pace for the introduction of certain reforms. This month’s feature looks at orphan works and extended collective licensing, which are scheduled to be among the first cabs off the regulatory rank.

 

Action: UK Government to bring forward proposals for an orphan works scheme (by November 2011)

 

Australia will watch these proposals from the UK Government keenly, as there is a push here, as in Europe and North America, to find a legislative solution to the problem of so-called ‘orphan works’. These are copyright works (books, letters, photographs, films etc) whose owners cannot be located by those wanting to use the works in some way, particularly collecting institutions such as libraries, museums and archives.

 

The Hargreaves Report divides the issue into two distinct categories – use of individual orphan works, and mass licensing of collections which include some orphans [1]:

 

Licensing individual works: “That would involve Government granting an authorisation to deal in a specific work where the copyright owner has not been found or identified after a diligent search. Should an owner later come forward, future use of that work from that point would be subject to negotiation, but there would be no liability for past use beyond any licence fee set by Government or its appointed agent.” [2]

 

Mass licensing: In the case of licensing a collection of copyright works with some orphans, Hargreaves recommends an extended collective licensing scheme based on the Nordic model. Following a diligent search (to ensure the supposed orphans are not in fact owned and opted out of the collective licensing scheme), a licence would be issued by the appointed collecting society. Any fees paid would be held by the collecting society until the owner was identified, or a reasonable period of time elapsed, in which case the monies would be used for social or cultural purposes.

 

Pressure points

 

While Hargreaves recommends a “nominal” fee for the use of orphan works in most cases, the UK Government has opted for a different approach by advocating “licensing at market rates for commercial use” of orphan works [3]. This variation is at least in part a response to the concerns of photographers and visual creators, whose works are most vulnerable to being ‘orphaned’ through distribution on the internet, and who worry that an orphan works scheme may provide an easy ‘out’ for commercial organisations looking to use works without payment.

 

Although it broadly supports most of the Government-backed Hargreaves reforms, the UK’s Association of Photographers issued a media release in August stating that it was “very concerned” about Government support for licensing of orphan works for commercial uses: “We, and others, have been against [this] from the start as it undermines the creators’ marketplace and makes a mockery of existing licensing arrangements.” [4]

 

Concern over commercial use is not confined to UK photographers. In May this year the European Commission’s proposal for a Directive on uses of orphan works limited the proposed uses to certain organisations (e.g. libraries and archives) and to cultural and educational uses. By contrast, the orphan works scheme that has existed for some years in Canada does allow for commercial use (as do proposals for orphan works reform in the United States).

 

Another pressure point over orphan works is the concern that reform will become a Trojan horse for mass digitisation – without the permission of copyright owners. To this way of thinking there is a very real potential that organisations seeking to digitise their collections will use orphan works schemes to overcome what is in fact a problem of rights clearance (e.g. for out-of-commerce works) rather than one of orphan works. Professor Hargreaves’ division of orphan works issues into licensing of individual works and “mass licensing of collections with some orphans” would seem to give credence to this concern.

 

Orphan works in Australia

 

None of the exceptions in Australian copyright law allow the use of a work without permission merely because it is an orphan work. There is an exception that allows the publication of old unpublished orphan works held in libraries, provided certain conditions are met. And in some cases, an exception may be more likely to apply if the work is an orphan work – for example, section 200AB (for educational institutions, libraries, collecting institutions and people with a disability).

 

Australian governments of both stripes have had orphan works reform on the agenda (since 2006) and it is likely that this will be one of the issues addressed by the Attorney-General’s proposed review of copyright by the Australian Law Reform Commission.

 

Action: UK Government to bring forward proposals for extended collective licensing (by November 2011)

 

The Hargreaves Report also calls for an efficient system to allow mass digitisation of collections of copyright works: “Digital technology permits mass digitisation so that whole collections – such as national libraries, the BBC, archive and private collections – may be made available online. But we are effectively prevented from taking this opportunity because of the transaction costs of assembling all the necessary permissions. The proposed Digital Copyright Exchange would alleviate this problem, but there would still be issues with owners of a small number of works in a collection who had not, possibly by oversight or because they are unknown, put those works into the system.” [5]

 

The remedy supported by Hargreaves is a system of extended collective licensing (ECL) based on the Nordic model, where a collecting society with a critical mass of members in a particular sector (e.g. representing a majority of literary authors in a particular territory) is granted the right to licence the works of non-members in that sector, unless they specifically opt out of the ECL scheme. Hargreaves qualifies his proposal by saying that it should not be imposed on a sector as a compulsory measure “where there is not call for it”, and that individual creators should always retain the ability to opt out of ECL arrangements.” [6]

 

In effect, this employs the same modus operandi as the Google Books Settlement (which was recently rejected in the courts in the US), in that it requires copyright owners to ‘opt out’ rather than ‘opt in’ to the licensing scheme.

 

The UK Government has said it intends to “bring forward proposals for extended collective licensing to benefit sectors that choose to adopt it” and, in doing so, will look to “maximise the benefits it could bring to smaller creative firms and individual creators in particular.” [7]

 

Proposals on both orphan works and ECL are due from the Government by November 2011. The real test will be in the detail of the proposals, which must answer some very fundamental – and very hotly contested – questions on how to balance the rights of copyright owners and copyright users.

 

References

[1-2] Digital Opportunity: A Review of Intellectual Property and Growth, Professor Ian Hargreaves, May 2011, p. 39.

[3] Government Response to the Hargreaves Review of Intellectual Property and Growth, August 2011, p. 6.

[4] The Association of Photographers Ltd, Media Release, 8 August 2011, p1.

[5-6] Digital Opportunity: A Review of Intellectual Property and Growth, Professor Ian Hargreaves, May 2011, p. 37-38.

[7] Government Response to the Hargreaves Review of Intellectual Property and Growth, August 2011, p. 7.

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Attorney-General’s Department to host roundtable on illegal downloading 25/08/2011

Closely following the High Court’s decision to review the iiNet case (see story this issue), the Attorney-General’s Office has confirmed that the Government will host an industry roundtable next month to discuss measures to combat online piracy. [1]

 

With both the High Court and the Attorney-General turning their sights to the issue of illegal downloading of copyright works – and the damage it is doing to Australia’s creative industries – the pressure is increasing for internet service providers (ISPs) to cooperate with copyright owners on the introduction of a ‘graduated response’ system, to notify internet users when they are found to be infringing copyright.

 

The ISP organisations invited to attend the Attorney-General’s late September roundtable include Telstra, Optus, the Internet Industry Association and the Communications Alliance. Copyright owner representatives include the Australian Content Industry Group (music, books, software), the Digital Entertainment Alliance Australia (television, film, home entertainment) and AFACT.

 

The background to this issue is that while the Attorney-General has repeatedly stated his preference for an industry-led solution, no such solution has been forthcoming. The scheduling of a Government-hosted industry roundtable is a clear signal that Government may be prepared to intervene if industry players cannot reach agreement.

 

Government-legislated graduated response schemes have been implemented in various countries including the UK, France and – in early September – New Zealand (see story this issue). Major ISPs in the United States have also struck agreement with the entertainment industries on an industry-led graduated response scheme for the US.

 

[1] The Australian, 22/08/11, at: http://www.theaustralian.com.au/australian-it/a-g-in-call-for-talks-on-online-piracy/story-e6frgakx-1226120005661

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New Zealand set to protect copyright works online 25/08/2011

Despite continued opposition from some quarters, and complaints of too little information from others, New Zealand is moving inexorably toward the launch of a new government-backed system to combat online piracy.

 

From September 1, the Copyright (Infringing File Sharing ) Amendment Act 2011 will allow copyright owners to send evidence of alleged infringements to internet service providers (ISP), who will then be required to send up to three notices to the account holder to inform them of the alleged infringement. If the notices are ignored, copyright owners can take their claim to New Zealand’s Copyright Tribunal, which has the power to make awards of up to $NZ15,000 against an account holder.

 

InternetNZ, the non-profit organisation promoting the internet in New Zealand, has stepped into the public information space to provide advice on how to prepare for the introduction of the new law. This includes a press release stating that it has received clarification from New Zealand’s Ministry of Economic Development that the law is aimed at peer-to-peer filesharing only, not at streaming websites or online file lockers.

 

“What this means, “ says InternetNZ chief executive Vikram Kumar, “is that watching videos on YouTube or via blinkx, streaming music from Grooveshark, and downloading from online file lockers like MediaFire and 4shared will not be subject to the changes…

 

“This will be welcomed by many people. However, despite the intention behind the law, the definitive interpretation will come from decisions made by the Copyright Tribunal and Courts if this aspect of the law is ever tested,” Kumar says. [1]

 

One of the disputed aspects of the scheme has been who should pay for the costs of the infringement notices sent by the ISPs: the copyright owners or the internet companies. The New Zealand Government has ruled that copyright owners are required by pay $25 per notice to ISPs in return for processing the notices.

 

The head of TelstraClear, Allan Freeth, has used the impending start date for the scheme to continue the corporation’s protest against the new law. In an opinion piece in ZDNet, Freeth made the following comment: “TelstraClear respects copyright, but we respect the ever-changing needs of our customers, too. At present, they are being denied the freedom to choose by companies intent on propping up old-world business models.” [2]

 

However, this well-worn argument has lost some of its gloss in an environment where entertainment companies have trialled a range of new business models that, ultimately, cannot compete with the zero cost of illegal downloading.

 

Importantly, in the first instance, the new system steers away from suspension of service of the account holder. According to New Zealand’s Commerce Minister, Simon Power, the bill includes a power for a district court to suspend an internet account for up to six months, however this element of the legislation will only be brought into force if the notice process and Copyright Tribunal remedies are ineffective. [3]

 

[1] InternetNZ at: http://internetnz.net.nz/news/media-releases/2011/Scope-copyright-law-changes-limited-P2P-file-sharing

[2] ZDNet at: http://m.zdnet.com.au/what-s-wrong-with-copyright-339320403.htm

[3] NZ Government at: http://www.beehive.govt.nz/release/new-regime-section-92a-copyright-infringements

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BBC gets it wrong on copyright 25/08/2011

User-generated sites like Twitpic and Flickr can be enticing to media organisations hungry for content but the BBC recently learned an embarrassing lesson about copyright on such sites.

 

The broadcaster credited several photos used in its coverage of the Tottenham riots to “Twitter”, which prompted blogger and amateur photographer Andy Mabbet to complain that whilst the photos may have been sourced from Twitter, they would have been taken by other photographers, who weren’t named and whose copyright may have been breached. [1]

 

The BBC then added to its troubles by responding with the following statement: “Twitter is a social network platform which is available to most people who have a computer and therefore any content on it is not subject to the same copyright laws as it is already in the public domain.” [2]

 

Predictably enough this erroneous statement from an organisation that deals daily with copyright works created a frenzy of negative reactions in the photographic community. Copyright is a delicate subject for freelance photographers, who already feel subject to a rights grab by the media organisations that commission their work, as well as for amateurs, who don’t necessarily want the works they put online to be used by others without permission.

 

The BBC then issued an official statement saying that its initial response was wrong and did not represent BBC policy: “We apologise for any confusion it caused…In terms of permission and attribution, we make every effort to contact people who've taken photos we want to use in our coverage and ask for their permission before doing so.

 

“However, in exceptional situations, where there is a strong public interest and often time constraints, such as a major news story like the recent Norway attacks or rioting in England, we may use a photo before we've cleared it. We don't make this decision lightly – a senior editor has to judge that there is indeed a strong public interest in making a photo available to a wide audience. In terms of attribution, i.e. giving a credit to the copyright holder, it's something we should always try and do when we use such photos in BBC News output.” [3]

 

As we reported in our June newsletter [4], Twitpic itself experienced the sting of contributors disgruntled over copyright issues when it changed its terms and conditions in May this year, to enable it to distribute user photos to third parties without seeking prior permission. A number of users complained and deleted their accounts, leading founder Noah Everett to make a public apology and seek to explain the reasoning behind the changes.

 

Ironically, it was a story in BBC News that made the following comment at the time: “Many also felt that the explanation did little to clear the ambiguity over who should profit from a newsworthy photo. Mr Everett was pressed for a clearer statement via his account on Twitter. So far he has not replied.”[5]

 

[1-2] British Journal of Photography, 15 August, at: http://www.bjp-online.com/british-journal-of-photography/news/2101942/bbc-caught-twitter-copyright-row

[3] BBC News at: http://www.bbc.co.uk/blogs/theeditors/2011/08/use_of_photographs_from_social.html

[4] Copyright Council at: http://www.copyright.org.au/news-and-policy/details/id/1971/

[5] BBC News, Technology, 12 May 2011, at: http://www.bbc.co.uk/news/technology-13372982

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