An Algorithmic undermining of Fair Use and Dealing In light of the defences of fair use and fair dealing, can automated enforcement systems for copyright be considered legitimate when they make use of blanket claims across a platform?
Matthew Quigley SNR-2011678 ANR-580186 Supervisors: John Waterson & M.H.M Schellekens Matthew Quigley
Table of Contents 1. Introduction ...... 3 1.1. Background ...... 3 1.2. Research Question: ...... 3 1.3. Significance...... 3 1.4. Methodology ...... 4 1.5. Literature review ...... 5 1.6. Chapter Overview ...... 5 2. What is the Significance of the application of Fair Use/Dealing in the digital age? ...... 6 2.1 The foundations and scope of the defences ...... 6 2.1.1 The UK approach, Fair Dealing ...... 6 2.1.2 The US approach; the Fair Use Defence...... 8 2.1.3 The parallels and contradictions of both jurisdictions ...... 10 2.2 The role of Fair Use/Dealing in democratising content creation: ...... 10 2.2.1 The Rationale behind fair use/dealing ...... 10 2.2.2 The Digital Economy, and the role of the exception ...... 11 2.3 The challenges facing fair use/dealing in the digital age ...... 13 2.3.1 Uncertain application of the defence ...... 13 2.3.2 Enforcement of Copyright in connection to User generated Content ...... 14 2.4 The defences and their main challenge ...... 15 3. What forms have enforcement Mechanisms taken, and what is their position under the current law? ...... 15 3.1 What forms have the enforcement mechanisms taken, and how do they work to enforce the authors Rights? ...... 15 3.1.1 What are the main elements of the notice and takedown systems? ...... 16 3.1.2 The move to automated enforcement ...... 16 3.1.3 Automated enforcement and Blanket claims ...... 17 3.1.4 What is the role of the evidential burdens with automation? ...... 18 3.2 What is the position of these systems under the current law? ...... 19 3.2.1. What is the UK and EU position on Automated Enforcement? ...... 19 3.2.2 Article 13 of the Digital Single Market Directive and its potential implications. .. 20 3.2.3. The US basis for Notice and takedown...... 21 3.2.4 Why do these provisions give rise to blanket claims? ...... 22 3.3 What are the concerns of Automated Enforcement and Blanket Claims...... 22 3.3.1 What are the due process issues that exist within automated copyright enforcement? ...... 22
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3.3.2 False positives and exacerbating factors? ...... 24 3.4 The damage of automated Systems...... 24 4. Is there a balance to be struck between the application of fair use/dealing and the use of automated enforcement systems? ...... 25 4.1. How do these systems undermine the doctrines? ...... 25 4.1.1 Blanket claims and the impact on Fair Use/Dealing:...... 25 4.1.2 How system and relationships between actors undermine the doctrine? ...... 26 4.1.3 Is the inability to rely upon the defences undermine due process?...... 27 4.2 Balance the rights at play: achieving sufficient protection for all parties? ...... 28 4.2.1 Making these systems proportionate and balanced ...... 28 4.2.2 The issue with imposing these systems and the attached requirements: ...... 29 4.3 Making these systems fit within our understanding of justice ...... 29 4.3.1 The lack of recourse and fundamental rights ...... 30 4.3.2 Online Dispute Resolution and Human intervention; conflicts with OSP Liability Limitation:...... 31 4.4 Can balance be struck?...... 32 5. Conclusion ...... 32 5.1 The defences and the impact of Blanket Claims ...... 32 5.2 Recommendations ...... 33 Bibliography ...... 35
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1. Introduction
1.1. Background The internet has democratised content creation, which was followed with the development of automated enforcement mechanisms for copyright. The use of these systems has enabled copyright holders to protect their rights across the online world, the systems have failed to effectively consider the principles that underpin Fair Use and Fair Dealing in the US and UK respectively.
Lord Denning outlined the general principles for Fair Dealing as follows;
“It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing.”1
This comment highlights the importance of context when considering whether something would fall under the defence; this raises numerous challenges as to the understanding of the dissemination of works through critique and commentary. The US approach takes a similar approach, regarding the purpose and character of the use, and the amount and substantiality of the portion used.2 Both of these doctrines require a detailed analysis as to whether they apply, which raises the question as to how an algorithm used to enforce copyright is to make this analysis and subsequent decision. Blanket claims compound this issue, in light of them taking place within opaque systems where entire bodies of content that could fall under the defence have been removed without any second opinion.
The legitimacy of these systems is undermined by the lack of recourse, especially in order to rely upon the defences prescribed by law. It raises a question as to whether these new enforcement systems are fit for purpose, and if their use can be reconciled with the applicability of the defences.
1.2. Research Question: “In light of the defences of fair use and fair dealing, can automated enforcement systems for copyright be considered legitimate when they make use of blanket claims across a platform?”
Sub-research Questions:
1) What significance does the application of Fair use/dealing have in the digital age? 2) What forms have enforcement mechanisms taken, and what is their position under the current law? 3) Is there a balance to be struck between the application of fair use/dealing and the use of automated enforcement systems?
1.3. Significance The research aims to resolve the issues regarding blanket claims and their legitimacy in light of the defences of fair use and fair dealing. Within the current body of literature regarding fair
1 Hubbard v Vosper [1972] 2 Q.B. 84 2 17 U.S Code §107
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use and automated systems, this issue has not been addressed and is a clear gap in legal understanding. This might be due to the lack of case law that considers fair use and its application in light of this; it is hoped that this paper will outline the considerations as to what the possible position a court might take.
1.4. Methodology The research will focus on concept of Fair Use/Dealing within the US and UK, on the basis that most companies that utilise automated enforcement mechanisms for copyright are based within the US, along with the similarities of Fair Use and Dealing in terms of the factors a judge must look at in regard to determine whether they apply. Though while similar, there are subtle differences that can result in different conclusions in the two common law jurisdictions. Further to this EU law will also be considered, as it has played a key role in shaping UK Copyright law and policy in recent years with the InfoSoc and eCommerce Directives.
The search relevant journal articles surrounding these issues, required searching through academic databases including SSRN, HeinOnline, Google Scholar and WestlawUK. The searches conducted focused on “Fair Use”, “Fair dealing”, “Automated Enforcement” and “Blanket Claims”.
When tackling the question relating to Fair Dealing, the main case that will be relied upon include Hubbard v Vosper3 along with the Copyright, Designs and Patents Act.4 Though given the broad scope of Fair Dealing under the Act, the question will focus on the exceptions under Sections 30 and 30A, which set out that it will apply to Criticism, Review, News reporting and Parody. This is on the basis that, these are the core exceptions under the statute which at in the digital age apply to user generate content that will make use of copyrighted works.
While for the US, Folsom v Marsh5 as will be considered along US Copyright Act 1976, setting out the basic requirements of Fair Use and its development in order to understand how it is to be applied and establish the similarities and differences that it has with Fair Dealing in the UK.
Further cases that will be explored include Lenz v Universal Media, as it addresses the relationship of Fair Use when relying on the Notice and Takedown procedure to ensure compliance with the DMCA’s safe harbour requirements. The case in conjunction with the older case law, will also be used to illustrate the shifting nature of the doctrine.
Along with this, there are various articles being used to then further explore the interplay between fair use and automated enforcement mechanisms; in order to try and determine whether there may be a lack of legitimacy in the issuance of blanket enforcement claims. The safe harbour provisions under the DMCA and eCommerce directive will be looked at in connection with the use of automated enforcement, and the case law of the Court of Justice in connection to general monitoring obligations and its prohibition.
An issue that will not be considered which is the issue of originality and derivative works, which could present another avenue of protection for content creators within the online space and could be the subject of further research.
3 Hubbard v Vosper [1976] 2 Q.B 84 4 Copyright Designs and Patents Act 1988 (UK) 5 Folsom v Marsh 6 Hunt Mer. Mag. 175, 9 F.Cas. 342 [1841]
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1.5. Literature review Through a search of the current body of literature the current focus of academics is on that of Fair Use and its interplay with the use of Automated enforcement mechanisms. While the search for anything within the context of “Blanket claims” being utilised to enforce copyright on a mass scale did not produce any results, indicating a gap in the literature. In regard to the application of Fair Use and traditional notice and takedown mechanisms, there were a few papers outlining the development of the case law and its impact on how policy has been shaped.
In the searches corresponding to “Fair use’ and “Automated enforcement” produced a variety of articles focusing on the use of notice and takedown mechanisms, and some addressing the interplay with Fair use. The main articles and academic work on this subject matter regarding notice and takedown, include Notice & Takedown in everyday practice by Jennifer Urban et al, which contains empirical research as to the use of the various forms of notice and takedown mechanisms; providing an insight into the failures in practice and the issues that need to be addressed moving forward. In addition to this, there is Accountability in Algorithmic Copyright Enforcement, by Perel & Elkin-Koren, setting out the issue of this form of enforcement and the failures in allowing it to serve as the main adjudication mechanism within the digital age.
There are also two books that cover the underlying context of the subject matter fairly well, there is Understanding Copyright: Intellectual Property in the Digital Age6 which provides an overview of the automated enforcement mechanisms used by YouTube to identify content and govern the takedown of content. There is also Digital Copyright7 by Simon Stokes, which looks at the developments of copyright in the digital age, including commentary on some of the issues relating to the DMCA and its application.
1.6. Chapter Overview
The second chapter will address the two doctrines and assess their similarities and role in the digital age; looking at the cases that has shaped the Fair Use and Dealing, such as Folsom & Marsh.8 It will outline the development of the doctrines overtime and the role they have played in the digital economy, and in shifting the development of content. It will also consider the issue of false positives and the challenges facing the defences in the digital age.
Chapter three will consider the various enforcement methods being utilised by the platforms for content management and how they have been shaped by the law or contrast with positions under law and it will focus on the legal basis automated enforcement mechanisms have under provisions of the Digital Millennium Copyright Act and the eCommerce Directive, and the relevant case law. The issue of blanket claims will be addressed, setting out how they are caused by automated systems and the concerns that they raise for the digital single market.
The fourth chapter will address the impact that Blanket claims has on Fair use/dealing, and the mechanisms that should be considered to attempt to rectify the diminished importance of the doctrines; and how the inability to rely upon the defences raises various due process concerns. Then it will consider whether Online dispute resolution will serve as an effective solution to rectify the various issues and mitigate the damage caused by Blanket claims.
6Klien, Moss & Edwards, Understanding copyright: Intellectual Property in the Digital Age (1st Ed, Sage Publishing 2015) 7 Simon Stokes, Digital Copyright; Law and Practice (4th Ed, Hart Publishing 2014) 8 Folsom v Marsh [1841] 6 Hunt Mer. Mag. 175, 9 F.Cas. 342
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2. What is the Significance of the application of Fair Use/Dealing in the digital age?
2.1 The foundations and scope of the defences
The defences of Fair Use and Dealing have been derived from the decisions of judges and are at their core common law doctrines despite having been codified in statute in both the US and UK. Given the common law origins of both tests, they require a detailed legal analysis in order to determine their applicability to a given case, therefore the case law and development of the doctrines through that case law is required to understand their role in the digital age.
2.1.1 The UK approach, Fair Dealing
In the UK, the defence of Fair Dealing has been enshrined under Chapter 3 of the CDPA, encompassing sections 29-30A which set out the various acts that could be considered as fair dealing. 9 Under the CDPA it is given a broad scope covering; research and private study, criticism and review, and parody. While these categories are established and reference fair dealing for that purpose will not infringe any copyright, the statute fails to define what constitutes fair dealing. The case law that covers the second category mentioned, illustrates what the courts will take into account when assessing whether it applies in the context of criticism and review.
The core case when addressing this doctrine, is that of Hubbard v Vosper,10 which dealt with the use of quotations from works of Ron Hubbard for the Church of Scientology in a book which was criticising the ideas and practices of Scientology. The claimant alleged that the quotations were an infringement of Hubbard’s copyright and that the critique of the practices and underlying ideas of scientology did not fall under criticism of a work. In the judgement at the Court of Appeal, Lord Denning assessed the relationship between the length of the quotation and the length of the commentary.11 In his judgement he indicated that the relationship was in inversed, so short quotations and long commentary is more likely to be considered Fair Dealing. The formulation provided in this case provided a great deal of clarity for what judges would need to consider when determining if Fair use can be applied.
In an earlier case, the courts had ruled that “Criticism” for the purposes of Fair dealing was confined to the work in question and not ideas that are connected to that work,12 which was one of the arguments that Hubbard sought to rely upon to restrict publication of Vosper’s critique. Denning rejected this argument, for he considered it to restrict the notion of critique too narrowly on the basis that:
“Literary Works consist not only of the literary style, but of the thoughts underlying it, as expressed in the words. Under the defence of Fair dealing both can be criticised.”13
9 Copyright, Design and Patents Act 1988, s30 10 Hubbard v Vosper [1976] 2 Q.B 84 11 Ibid 12 British Oxygen Company Ltd. V Liquid Air Ltd [1925] Ch. 383, 393 13 Hubbard v Vosper [1976] 2 Q.B 84
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This analysis of the doctrine set out by Lord Denning and the ability to criticise fits within the understanding of copyright which is that it is not held within the idea, but the expression of that idea in a tangible form, and that once it has been published it is open to critique. Though the doctrine as set out by Denning has been accepted and built upon in subsequent case law, Lord Justice Walker held that the assessment of quotations in a work of critique is indeed a matter of impression14 reaffirming the assessment set out in the prior case. Though in the case, the Court set out that purpose should also be considered when determining if something would be considered Fair Dealing because it would identify the correct path for claim
One of the main issues with Lord Denning’s judgement is that the principles he outlined are framed in the context of literary works, which was addressed in the case of Time Warner v Channel 4.15 In the case, the work of review was a video commentary of Stanley Kubrick’s film A Clockwork Orange was the matter of contention. Time Warner contending that fair dealing did not apply for several reasons; though the important objections in this case was that the extracts chosen misrepresented the contents of the films and the length of those extracts and that they formed a substantial amount of the documentary.16
In answer to the first question, Neill LJ stated that the court should not reject the defence on the basis that the critique only covers one aspect of the film or book and it can easily be envisioned the many cases in which it would be legitimate to select and criticise a single scene of violence17. This element of the judgement reiterates the previous points in the previous cases, that fair dealing is not about the fairness of the commentary, something supported in the opinion of Henry LJ. In his opinion, he finds the theme of the critique would indicate the type of clips that would be used from the film.18 Indicating that the selection of clips might be to suit the theme of the critique, and that the commentary need not be fair for the defence to apply.
In connection to the second question, regarding the length of the clips used and relied upon to produce the critique. In reference to the length of the clips used, Neill LJ found that for serious critique of a film, a significant amount of it should be shown.19 This indicates a greater degree of flexibility in comparison to the decision of Lord Denning in his judgement in Hubbard, with the relationship of extract length and commentary, thus there is a shift away from this traditional understanding. The case recognises the importance of the format of the work of criticism or review, from this understanding it can be concluded this context should be considered when assessing the former quotation-commentary length.
Though in the Pro Sieben case, it is to be noted that the Fair Dealing exception was to be confined to criticism and news reporting20, which is covered under the purposes defined under Section 30 of the CDPA.21 This judgement gives an indication that in the UK, there is a rigidity and the courts would be hesitant to stray from the statutory categories provided under the CDPA.
14 Pro Sieben Media AG v Carlton UK Television Ltd [1998] EWCA Civ. [1999] 1 W.L.R 605 15 Time Warner Entertainments Company LP v Channel 4 Television Corporation Plc and Another [1994] E.M.L.R. 1 16 Ibid, 1 17 Ibid, 12 18 Ibid, 14 19 Ibid, 12 20 Pro Sieben Media AG v Carlton UK Television Ltd [1998] EWCA Civ. [1999] 1 W.L.R 605 21 Copyright, Designs and Patents Act 1988, s30
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Though this restrictive decision has since been challenged, the Hargreaves review, was a report commissioned by the government to outline the challenges facing copyright law in the digital age and reforms for the government, set out proposals regarding the defined list of exceptions under the CDPA. Hargreaves suggested that the CDPA had yet to be amended to adequately reflect the expansion of exceptions and that they should more to incorporate the parody, satire and pastiche exception.22 This was suggested as the UK had yet to incorporate aspects of Art. 5 of the InfoSoc Directive,23 which included a parody exception which has now been integrated under the Fair Dealing provisions under Section 30A of the CDPA. When determining whether content would fall under the parody exception, the CJEU stated that is an issue for national courts to decide,24 though the opinion of the Advocate General provides a helpful indication as to the main elements that should be considered:
“the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery.”25
The constant idea that sits at the core of Fair Dealing in the UK is the impression and purpose of the work, whether it be critique or parody. The use of the copyrighted work is important and so the relationship between the extracts used and the commentary is still a relevant factor, though its importance has since diminished to take into account new forms of copyrighted work.
2.1.2 The US approach; the Fair Use Defence
In the US, the defence is set out under Section 107 of the Copyright Act which outlines the four factors a court will consider; which is the purpose and character of the use, the nature of the copyrighted work, the amount and importance of the extracts used in relation to the copyrighted work as a whole, and the effect it has on the market or value for that copyrighted work.26 The four required elements that have been enshrined in the US legislation are derived from the judgement in the case of Folsom v Marsh27 a case addressing the use of extracts from the autobiography of George Washington.
In Folsom v Marsh, it was outlined by Justice Story that “a reviewer may fairly cite largely from the original work if his design be really and truly…for the purposes of criticism.”28 Justice Story in his judgement further elaborated that is that the value and nature of the selections made and if the work resulting from those diminishes or supersedes the original29 would in fact be an indication of the contrary.
22 Dr Ian Hargreaves, “Digital Opportunity, a review of intellectual property and growth”, 50 23 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ/L167, Art. 5 24 C-201/13 Deckmyn v Vandersteen [2014] Para 35 25 C-201/13 Deckmyn v Vandersteen [2014] Opinion of AG Cruz, Paras 66-69 26 17 U.S.C §107 27 Folsom v Marsh 6 Hunt Mer. Mag. 175, 9 F.Cas. 342 [1841] 28 Ibid 344 29 Ibid 345
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Further in his judgement he rejects the notion that quantity of the original work taken is an important consideration for the Court, and that it must be left vague and that as stated the value of the extract taken from the prior work is the question the court will ask.30 It is submitted that the value of an extract is a difficult thing to quantify, on the basis that an extract from a work could be indicative to its content and the main ideas expressed but at the same time the utilisation of that quote could be crucial when writing a critical work. Though the Supreme Court had confirmed that in works of critique, the quality and importance of an extract would be a guiding factor31 while length of extract is not something the court will consider.
Though the US case law saw developments, in which the Supreme Court drew established the requirements and distinguishing features which enabled parody to fall under the now statutory defence. The four factors should be considered as stated in the judgement of Souter J. however he outlines that parody content will have greater leeway in regard to some of these factors.
When dealing with the first element of his judgement, he states that the threshold for fair use in relation to parody content is whether the parodic character of the resulting work is reasonably perceived, though this does not raise the question as to whether it is in good or bad taste.32 The offence caused by the work, or its quality is deemed not to have any bearing on whether fair use would be applied.
In relation to the elements of the original work that are borrowed or utilised in the subsequent work of parody he found that “Parody’s humour necessarily springs from recognisable allusion to its object”33 which is the important distinction that parody has compared to critique under US law. It is arguably a requirement that the parody uses the important and core elements of the original work. This was supported in a later case in which the court stated that “the amount taken becomes reasonable when the parody does not serve as a market substitute for the work.”34
In his concurring judgement, Kennedy makes reference to the transformative nature of a parody and that the parody should have some form of comment on the original work from the perspective of the one behind the parody.35 This was something was observed by Damon in his discussion regarding the Brownmark Films case, in which he stated the case illustrated that a parody “might be coupled with a comment on broader issues.”36 In essence, the commentary on broader issues or the writers perspective, will provide for a clear indication as to whether a parody can rely on fair use under US Law.
The court viewed the defence of fair use as an affirmative one, and that in line with the statutory provisions it should be judged on a case by case basis.37 The idea that it is an affirmative defence has since been challenged in US, with the case of Lenz v Universal Music.38 The court
30 Ibid 348 31 Campbell v Acuff-Rose Music 510 U.S 569 (1994), 32 Ibid, 582 33 Ibid, 588 34 Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687 (2012), 693 35 Campbell v Acuff-Rose Music 510 U.S 569 (198) 599 36 Damon, Parody, caricature and pastiche: cam we learn anything from South Park Elementary, Ent. L.R 117 (2013), 118 37 Campbell v Acuff-Rose Music 510 U.S 569 (1994) 38 Lenz v Universal Music Corp. No. 13-16106 (9th Cir. 2016)
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found that in light on the online notice and takedown procedures, a copyright holder lodging the complaint should make a “judgement of good faith”39 as to whether fair use would be applicable to the work they have issued a takedown request against.
2.1.3 The parallels and contradictions of both jurisdictions
In both Jurisdictions the courts that the commentary is not the thing that is in question, whether it be quality or if the opinion is fair, the issue in question is the selection of extracts and the purpose of their use is fair.40 Such as one critique that was discussed by the US courts, was deemed as having the quality of something produced by a film studies student41 but the level of quality or professionalism of that critique was not indicative as to whether it was a valid critique. Which falls in-line with the general view that the courts have taken prior, it is the selection of the extracts and their purpose. The rule that is illustrated in the Courts and the legislation, is that all fair use/dealing cases are a matter of impression and should be judged on a case by case basis.
Though the distinguishing feature between the two concepts, is the narrow approach taken in the UK via the use of fixed categories in which the defence can apply, while the US doctrine provides greater scope for interpretation. The notion of “Transformative use” gives the US courts a greater degree of flexibility when assessing whether Fair Use applies in the present case. The idea of transformative use places more emphasis on the input of the content creator and how they build upon the copyrighted work that they use, this room for manoeuvre was noted by Ian Hargreaves who stated that it provided a zone for trial and error.42
One interpretation of this, is that it provides a greater deal of uncertainty than the closed category approach within the UK, and the general rule for the courts is to stick to those categories.43 It was noted that there was a level of hostility to transposing the US approach into UK law, owing to this perceived uncertainty and that the creative industries in the UK have arguably flourished without the US approach.44
2.2 The role of Fair Use/Dealing in democratising content creation:
2.2.1 The Rationale behind fair use/dealing
It is generally accepted that the exceptions to copyright exist for various reasons, that are accepted in the UK as the narrow Fair Dealing exception include news reporting and criticism, but this has since been amended since the Hargreaves review which suggested that parody should be included to the Fair Dealing categories.45 The expansion suitably reflects an exception included in the InfoSoc Directive, however these exceptions are arguably
39 Ibid 40 Hubbard v Vosper, and §107 of the US Copyright Act, illustrate this through the relevant expectations for both doctrines to be applied. 41 Hosseinzadeh v Klien Case No. 1:16-cv-03081-KBF (NYSD 2017), 3 42 Dr Ian Hargreaves, “Digital Opportunity, a review of intellectual property and growth”, (2011) 44 43 Pro Sieben Media AG v Carlton UK Television Ltd [1998] EWCA Civ. [1999] 1 W.L.R 605 44 Dr Ian Hargreaves, “Digital Opportunity, a review of intellectual property and growth”, (2011), 44 45 Ibid, 50
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underpinned by the freedom of expression both as a general idea for disseminating culture and as the fundamental right.
Megaw L.J stated in Hubbard v Vosper, that the criticism of a work would include “criticism of the ideas, the thoughts expressed by the work in question”46 bringing attention to the discourse that was led by such a work into the practices and ideas of scientology. This was supported by the closing comments in Lord Denning’s Judgement, in which he stated the law would not suppress free speech unless it was abused indicating the notion that Fair Dealing serves as a tool to enable free speech.47
This interplay is also discussed by the Advocate General Villalon, in the opinion given in the case of Deckmyn stating that the legislation was to “respect fundamental rights, in particular, intellectual property and freedom of expression.”48 This indicated the basis for the InfoSoc Directive and extensive list of categories included, and it was further discussed the importance of balancing the rights and that there are circumstances in which the exceptions can be limited but for reasons outside of copyright, as Villalon suggests parody could not be relied upon as a free expression if the distortion of the original work convey messages against societies deeply held beliefs.49
This rationale of free expression and its interplay with Fair Use, is noted in the US with the case of Campbell v Acuff Music that the doctrine’s purpose is to foster creativity.50 This notion is outlined by Denicola, in their analysis of other Fair Use case law, such as the New York Times v Roxbury Data, which he notes as an illustration of the Fair Use Doctrine serving to ease tensions between copyright and the first amendment.51
This running theme on both sides of Atlantic, in which Fair Use and Dealing are seen as one of the main tools to help balance out the tensions that exist between copyright and freedom of expression. This can be seen in the case law, with Denicola stating Fair Use serves to strike the balance between property interests and freedom of speech, indicating that it should not be recognised as a constitutional protection, but as a substantive legal rule to reduce help strike the balance.52 While in the UK approach to the exception as a tool to enable free speech, and Copyright law should not be abused to restrict freedom of speech, with the EU interpretation of the exceptions under the InfoSoc directive taking a similar approach in recognising their role in this capacity.
2.2.2 The Digital Economy, and the role of the exception
Stokes raised the question as to whether the above exceptions to copyright would survive in the digital economy53, it is submitted that the answer to this question is that they should survive in the digital economy. This is based on the premise that the intermediaries play the crucial
46 Hubbard v Vosper [1972] 2 Q.B. 84, 98 47 Ibid, 97 48 C-201/13 Deckmyn v Vandersteen [2014] Opinion of AG Cruz, Para 75 49 Ibid, Para 85 50 Campbell v Acuff Music. 510 U.S 569 (1994), 577 51 Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 Cal. L. Rev. 283 (1979), 297 52 Ibid, 299 53Simon Stokes, Digital Copyright; Law and Practice (4th Ed, Hart Publishing 2014), 6
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role in how content is distributed in the digital age54, and not only in enabling easier access to copyrighted works and content, but they have shifted the business models in favour of independent creators and journalists.
With the development of new media platforms such as YouTube and Twitch, there has been greater focus on user generated content. YouTube operates a hosting service for its users, hosting a wide variety of content, but has recently added a live-streaming service for users to directly stream footage to an audience live. The service offered by Twitch focuses on live- streaming by users, with a history in streaming game-play, though historically streamed content can then be watched on demand. Both of these companies, made user input an integral part of their platforms, enabling their users to profit from the content they uploaded. The relevance of YouTube as a platform was noted as early as 2006, in which the impact it had was noted for enabling the wider public to seize global media and frame this new digital democracy.55 The ability for the user to generate content has enabled those with a passion to pursue it and find their audience, with little practice or experience in the creative or journalistic industries. This was encapsulated in the Hoss v Klien case in which it was noted that the critique was “equivalent to the kind of commentary and criticism of a creative work that might occur in a film studies class.”56
This shift of focus to the user producing content, has kept a degree of momentum evidenced by the ability to stream directly from a games console or save that footage to be uploaded later.57 The market obviously illustrates an appetite for user generated content, on the basis that there is arguably a symbiotic relationship between the Content creators and various market players in the digital economy.58
Though it forms the basis for some of the business models utilised by internet intermediaries such as YouTube and Twitch, a tension arguably exists in who reaps the rewards resulting from a work. In the case of YouTube, they have the ad revenue system which works in tandem with their content ID mechanisms, there is the benefit conferred on the copyright holder who is given the option to either remove the infringing content or claim any ad revenue for themselves.59 While it would seem to be an initially uncontroversial move, it raises a question when the systems at play start targeting works that are bona fide instances of fair use/dealing, whether such moves are justified and proportionate?
The dominance of the traditional media outlets has been diminished by this democratisation that is enabled both by the platforms enabled on the internet, with entire business models based on Fair Use/dealing.
54 Klien, Moss & Edwards, Understanding copyright: Intellectual Property in the Digital Age (1st Ed, Sage Publishing 2015), 45 55 Ibid, 88 56 Hosseinzadeh v Klien Case No. 1:16-cv-03081-KBF (NYSD 2017), 4 57 Conway & DeWinter, Video Game Policy: Production, Distribution and Consumption (Routledge, 2015), 19 58 Klien, Moss & Edwards, Understanding copyright: Intellectual Property in the Digital Age (1st Ed, Sage Publishing 2015), 59 Ibid, 57
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2.3 The challenges facing fair use/dealing in the digital age
2.3.1 Uncertain application of the defence
With the shift onto user generated content, there are various concerns as to how the doctrines should be applied and what could fall under their scope. The issue arises from the development of new content types that have arisen, such as “Let’s Play” gaming videos.60 This content focused on the content creator playing through a video game, either in part or all the way through, sometimes with running commentary. This form of content raises a few issues when applying the requirements set out under legislation and the case law, which puts content producers into a difficult position when determining whether something would be okay to upload.
The question raised in connection to the Fair use/Dealing and its application “Let’s Play” videos, is whether “Let’s play” content fits within the requirements set out under Hubbard v Vosper61 and the considerations that the US Courts are to consider set out in the legislation.62 Vogele notes that one of the issues that some might fall short on, is the transformative nature of the resulting work, referencing the story driven game That Dragon Cancer.63 They suggest that in games where the story is the core focus, and player interaction is minimal it is unlikely to be transformative64; further to this there is the possibility that “Let’s play” videos form a market substitute and therefore would fall short of fourth consideration under US law.65
It is submitted that the UK position could be more restrictive as they potentially would not fall under the closed categories of Critique/Review and Parody66, and when interpreting these categories, the courts have stated that the statute should be interpreted narrowly.67 While the case was heard before the reforms that introduced the Parody, Caricature and Pastiche, the principles are very much applicable and the narrow approach to these categories limits the room for interpretation.
The main issue that arises from this, is that the categories and requirements established in law do not take into account some of these new content formats, or the scope of the market for this type of content. As the “Let’s Play” genre of gaming videos has expanded, it gained more traction and attracted various companies in the industry who implemented features into gaming consoles to encourage the activity.68 It was noted by Methentis, that this could potentially complicate the disputes occurring in this area with it potentially bringing in more parties than a normal fair use case would.69 This highlights the practical issues that face those involved,
60 Vogele, Where’s the fair use? The takedown of Let’s Play and Reaction Videos on YouTube and Comprehensive DMCA Reform, Touro Law Review, Vol. 33: No 2 589 (2017), 591 61 Hubbard v Vosper [1972] 2 Q.B. 84 62 17 U.S.C §107 63 Vogele, Where’s the fair use? The takedown of Let’s Play and Reaction Videos on YouTube and Comprehensive DMCA Reform, Touro Law Review, Vol. 33: No 2 589 (2017), 591 64 Ibid, (Check the page). 65 Copyright Act 1976 §107 U.S.C 17 66 Copyright, Design & Patents Act 1988, s30, s30A 67 Pro Sieben Media AG v Carlton UK Television Ltd [1998] EWCA Civ. [1999] 1 W.L.R 605 68 Conway & DeWinter, Video Game Policy: Production, Distribution and Consumption (Routledge, 2015), 19 69 Ibid, 19
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especially when they encourage and make it easier for of the users to generate content of this nature.
2.3.2 Enforcement of Copyright in connection to User generated Content
With the digital age, new mechanisms to enable the enforcement of copyright with the main method taking the form of the notice and takedown procedure set out in Section 512 of the DMCA70 and Art. 14 of the eCommerce Directive. They set out the procedures in which Copyright holders are able to notify the Online Service Provider if there is infringing content, and they will usually respond by taking the content down. Though YouTube gave the choice between removal or monetize the video through the ad revenue while leaving it up, allowing them to profit from any infringement that may occur.71
There is an issue however in the notice and takedown framework, which is that of false positives. Copyright False Positives, which is defined as the erroneous belief of Rights holders that they can claim more protection over their work that what is actually afforded to them and this issue has become more widespread with the advent of online enforcement.72 Compounding this issue regarding the false assumption of wider copyright protection than actually exists, is an uncertainty as to what constitutes an infringement in light of user generated content. The other issue is the potential for abuse, with false claims used for censoring unfavourable critique or news reports.
These issues are exacerbated by the use of bots to make the notice and takedown procedure more effective has led to a reduced sensitivity and as such they have contributed to a wide range of false positives.73 In light of the issues that can be attributed to the implementation and use of notice and takedown procedures, it is submitted in Lenz v Universal, the court attempted to redress the balance in moving the consideration for Fair Use forward to before a claim was launched.74 While this is the suggested assumption, the use of the aforementioned bots to automate the process has diminished the importance of Lenz, with the actual judgement not impacting the way takedown notices are issued. This sentiment was echoed by Michel Reymond, who remarked that the judgement accomplishing little in the way of this, and giving the automated systems used by YouTube a free pass.75
The main mechanism the courts had utilised has been discussed, which is by moving the stage in which fair use as a doctrine would be considered, which was now prior to a claim notice being brought forward.76 This arguably would help mitigate against false positives, an issue outlined by Depoorter and Walker as originating from uncertainty in copyright, as its boundaries are difficult to ascertain.77 These claims are those which take down content that wouldn’t actually be in breach of another’s copyright because they are able to rely on one of
70 17 U.S.C §512 71 Klien, Moss & Edwards, Understanding copyright: Intellectual Property in the Digital Age (1st Ed, Sage Publishing 2015), 72 Depoorter & Walker, Copyright False Positives, 89 Notre Dame Law Review 319 (2013), 320-321 73 Ibid, 333 74 Lenz v Universal Music Corp. No. 13-16106 (9th Cir. 2016) 75 Michel Jose Reymond, Lenz v Universal Music Corp: much ado about nothing? I.J.L. & I.T. 24(2), 119-127, (2016), 127 76 Ibid, 127 77 Depoorter & Walker, Copyright False Positives, 89 Notre Dame Law Review 319 (2013), 329
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the defences. Due to the uncertainty of these boundaries, and when considering the nature of the Fair use/Dealing doctrines, the intent, relationship between extracts and commentary, or the transformative nature of a parody create the environment in which false positive claims are likely to arise. The issue of these false positives is noted, with others noting the issue of human fallibility which presented questions as to the validity of copyright enforcement and the potential fair use reliance,78 while it could be asserted that Lenz by moving the burden to consider fair use to the pre-claim stage, human error is still an issue that may lead to false positives because of the uncertainties that exist.
One idea to address these challenges, was postulated by Michael Carroll, which is the creation of a Fair Use Board. The suggestion was discussed by Vogele who suggested that it would be a better approach than the current uncertainty that arises from the internal policy approach taken by the platforms.79 It is submitted that this is an incorrect assumption, because the internet in its very nature transcends national boundaries and jurisdictions, therefore establishing such a body at the US Copyright Office as was suggested80 is untenable. This becomes an even greater problem with the proposed Digital Single Market directive, which under Art. 13 will require Online Service providers to make use of content recognition mechanisms to take down infringing content.81 The proposed directive would raise further questions as to the wider applicability of the US Copyright laws within this realm of online infringement, and also raise questions on the role of the exceptions at law within the jurisdictions implementing the proposed directive.
2.4 The defences and their main challenge
Fair use and dealing play an instrumental role in enabling user generated content and the dissemination of copyrighted works. The central basis for this, is the parallel elements of the exceptions, such as the context of the use and purpose of said use in order to determine whether it was permissible, with the input of the user also being a decisive factor to an extent. To analysis that is required for both doctrines, has given rise to various challenges as outlined with the automated copyright enforcement serving as the main challenge with such an analysis potentially being side-lined in favour of overzealous enforcement. 3. What forms have enforcement Mechanisms taken, and what is their position under the current law?
3.1 What forms have the enforcement mechanisms taken, and how do they work to enforce the authors Rights?
As discussed previously one of the challenges facing Fair Use and Dealing, is the use of Automated enforcement mechanisms. Though to understand how this challenge, the development of the enforcement mechanisms and the role the law has played in shaping them.
78 Urban, Karaganis & Schofield, Notice and Takedown in everyday practice (2017), UC Berkley Research Paper No. 2755628, 117 79 Where’s the fair use? The takedown of Let’s Play and Reaction Videos on YouTube and Comprehensive DMCA Reform, Vogele, Touro Law Review, Vol. 33: No 2 589 (2017), 629 80 Ibid, 629 81 Commission “Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market” COM (2016) 593, Art. 13
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It is also important to understand how they deal with copyright disputes and alleged infringements, as this will serve to frame how the doctrines are challenged.
3.1.1 What are the main elements of the notice and takedown systems?
As discussed, there are a variety of online services and platforms that rely on user-generated content which brings various risks of liability, however this can be mitigated; if they comply with the safe-harbour provisions set out under section 512 of the DMCA.82 The safe harbour provisions require them to act expeditiously to remove the allegedly infringing material when notified by the rights holders, something that is mimicked under the eCommerce Directive within the EU. Most platforms have acted in order to implement mechanisms to assist with the compliance of these provisions.
The policies utilised by the OSPs in order to comply have been characterised by Urban et al. in their work on the Notice and Takedown procedures, determining that there are two broad categories the first of which is the DMCA Classic which is considered the manual review of notices issued from parties to decide the actions that are taken.83
The traditional model of review is arguably utilised by a Pinterest, as it states under their copyright policy that they will take any action that they deem appropriate in response to a notice.84 This move could be attributed to what some see as a different model that Pinterest took as a company in comparison to other online platforms, with a greater focus on user-sharing of the content that was available across the wider web on the platform85 which arguably required them taking a nuanced approach to addressing any infringement. The effectiveness of this approach in tackling infringement is a matter of further debate, the core element of this approach is the human review.
3.1.2 The move to automated enforcement
The manual notification and response system is arguably hindered by the scalability of internet platforms, and that there inevitably comes a stage in which manual systems can become untenable. The development of the systems can potentially be categorised, Urban suggested that the two automated systems can be categorised as either “DMCA Auto” and “DMCA Plus.”86
DMCA Auto defines the approach taken in which due to the vast number of notices the process has largely been automated87 from the receipt of the notice to the takedown of the infringing work. While the last category defined by Urban et al, “DMCA Plus” is another step on from these systems in order to tackle issues such as repeat infringement and contractual side
82 17 U.S.C §512 83 Urban, Karaganis & Schofield, Notice and Takedown in everyday practice (2017), UC Berkley Research Paper No. 2755628, 25 84 Pinterest Copyright policy
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agreements with rightsholders.88 These automated and algorithmic systems are arguably best illustrated by the Content ID system utilized by YouTube, in which the corporate partners to the platform are able to automatically have infringing content removed or tap the revenue stream through advertising.89 This form of system has seen an uptake from others dealing with a breadth of user generated content and sharing such as Facebook having rolled out their Rights Manager service, mirroring the Content ID system used by YouTube,90 indicating the greater reliance on these algorithmic systems moving forward.
Though the other element of the Notice and Takedown system is the counter-notice that can be issued by the person who the claim has been brought against. In YouTube’s implementation of this, they can appeal and then the original rights holder will then have to initiate a legal action within a timeframe and failing to do so will allow the video to be reuploaded after the claim is not pursued any further.91 This could be seen as striking a balance in a time of automated takedowns, this policy element arguably being an exercise of good faith to reflect the contentious nature of infringement and the defences.
3.1.3 Automated enforcement and Blanket claims
As mentioned above, automated enforcement mechanisms have begun to gain traction across Online services covering a range of legal issues such as security, privacy, defamation and Intellectual property.92 The Content ID system is arguably the best example of this form of enforcement mechanism, with it enabling content providers to upload digital copies of their works that will serve as a reference point for the algorithms.93
This described system seems to be an initiative to ensure the compliance with the safe-harbour requirement, that copyright claim notices need to be dealt, and any infringements discovered must be taken down expeditiously.94 Automation of the system is valuable as stated previously because of the scalability of the business run by these OSPs, which inevitably increases the exposure to liability when they reach a certain critical mass. It also reflects the urgency of traditional copyright industries in the wake of online infringement to ramp up enforcement95 and work with the organisations that serve as a conduit for infringement. The economic issues facing these companies is arguably reflected in the move by YouTube to allow them to leave the infringing videos up and claim the ad-revenue.96
88 Ibid, 29 89 Klien, Moss & Edwards, Understanding copyright: Intellectual Property in the Digital Age (1st Ed, Sage Publishing 2015), 57 90 Sam Gutelle, Facebook Officially Announce its video Rights Management Service (Tubefilter, 2016)
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The above environment has created a situation which has given rise to blanket claims, this is where the algorithm sweeps through the entire platform flagging up any match indiscriminately. This can result in users being hit by multiple claims within quick succession, this was seen in a recent series of blanket claims regarded as crackdown by many.97 This blanket enforcement issue can be traced to the filtering of content via the algorithm, which has be criticised as only assessing whether it matches the protected work, lacking the factual assessment required for any exceptions.98 It is this failing which creates the environment for the arbitrary results from blanket claims, however it is a matter of debate as to whether the false positives issue is solely the fruit of automation.
3.1.4 What is the role of the evidential burdens with automation?
The US and UK recognise infringement and the defence to be questions of fact and it is this factual determination that is arguably ignored by the algorithms. When determining the infringement, it is up to the claimant to prove that the infringement is taking place99 and it was stated by Diplock LJ that it is up to the defendant to rebut the alleged infringement.100 While the case dealt with the question of copying and the connection between two musical works, the requirement is that when one seeks to rebut a causal connection or rely on a defence the burden is flipped. The similarity can be noted in the US approach, as stated by Kennedy J in the Supreme Court, that “Fair use is an affirmative defence”101 and it requires a detailed analysis of the circumstances of a case in order. On this basis it could be argued that the design of the notice and takedown system is reductive in the need to satisfy the evidential requirements.102
Though in the UK, Lewison J indicated that the evidential questions served as a mere tool for the courts to make a determination as to whether an infringement has occurred.103 The final determination is left to the judges once they have heard the evidence, though the volume of the claims on these platforms would make it untenable for the courts or even the suggested fair use board to make a determination.104 The issue however with the automated enforcement mechanisms, they will treat it as a prima facie infringement, relying on the testimony of the defence later.
In the US, the defence of Fair Use is traditionally an affirmative defence, requiring the defendant to provide the evidence indicating that they were not infringing copyright. Though Lenz v Universal, the court it could be suggested moved the burden to consider fair use onto the rights holder, by making them have to consider it in good faith when sending a notice.105 Though it is asserted the movement of the assessment is insignificant, as for instance Pinterest
97 Kotaku- YouTube’s Copyright Crackdown: what you need to know?
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only require a box to be ticked on the claims form in connection to this good faith requirement.106 Further to this in the context of automation, the case of Lenz is considered by some to have given the automated recognition systems a free pass owing to the lack of input from the rights holder the claim is issued.107
3.2 What is the position of these systems under the current law?
3.2.1. What is the UK and EU position on Automated Enforcement?
The current position in UK and EU is set out under Art. 14 of the eCommerce Directive which limits the Online Service provider’s liability if they do not have knowledge of any illegal activity or they act, upon receiving information of such acts, and expeditiously remove or disable access.108 This forms the basis of the notice and takedown mechanisms within the EU; though it does not necessarily provide a legal foundation for the use of automated enforcement mechanisms that are utilised by companies like YouTube.
Though, under Art. 15 of the eCommerce Directive, there is a prohibition on a general obligation to monitor the content that is placed onto the hosting service.109This is an important part of the legislation as it makes it so that a member state cannot impose said obligation upon the Service providers who host content uploaded by users. It should be noted however, that this is a prohibition against the obligation to conduct general monitoring, and not prohibiting general monitoring on a voluntary basis. The EU case law elaborates on the reasoning behind these prohibitions, such as in the case of Scarlet v Sabam, the CJEU states that under Art. 3 of Directive 2004/48110 measures of enforcement must be fair and proportionate and the requirement of an OSP to monitor all the consent is not deemed to be so.111 This notion is backed up by the latter case of SABAM v Netlog, referring to the Scarlet case when stating the general monitoring of content would be a disproportionate and an unfair imposition.112
The court also set out that it would infringe upon the freedom to impart and receive information under Art. 11 of Charter of fundamental rights113 something again that is reiterated in the latter case. This protection of expression arguably could cover exceptions such as fair dealing, as the exception enables the expression of critique or commentary on a copyrighted work and such a thing would also be undermined by such prohibitions, while this is not explicitly stated by the court, this assumption illustrates the prohibitions importance in protecting established legal doctrines.
106 Pinterest Copyright Infringement Notification form
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The court further stated that “the system might not distinguish adequately between unlawful and lawful content, with the result that its introduction could lead to the blocking of lawful communications.”114 The court in noting this issue indicates an awareness in the European Union of the issue of False positives and the potential problem of unaccountable results from the use of these systems.
The current established European position is that imposing general monitoring obligations by law would be disproportionate and unfair as a mechanism to enforce copyright, and there is a concern of the results that these systems would produce. Therefore, it is important to recognise that the EU position does not prohibit the voluntary use of general monitoring and content recognition systems, however this could potentially change due to recent commission proposals.
3.2.2 Article 13 of the Digital Single Market Directive and its potential implications.
The Commission has proposed a Digital Single Market Directive, which under Art. 13 seeks to introduce an obligation to use content recognition technologies in cooperation with the rights holders to prevent infringement.115 The obligation set out under this provision runs contrary to the current position under the eCommerce directive and its prohibition on general monitoring.
Though a key component of the proposed provision mandating the use of Content Recognition measures, is that they should be appropriate and proportionate.116 The drafting of this article is problematic on the basis the CJEU has consistently stated that such measures imposed by law are deemed to be disproportionate and unfair in pursuing the aim of enforcing intellectual property rights.117 This contradiction would inevitably lead to problems in interpreting EU law and determining which directive should be applied.
The CJEU in the case of Scarlet also noted the undue economic burden that would be imposed by the injunction requiring the general monitoring and filtering.118 If this was the reasoning by the court, it is submitted that the same argument is applicable to the proposed requirements119 indicating that consistent issues that may arise with the implementation of this directive.
The final concern with the proposal, is that it arguably fails to take into account the careful balancing of rights that the Court had considered between Intellectual Property and the freedom of expression.120 As such this obligation could potentially shift the balance when taking into account the current technological standard for content recognition online, which is not a desirable result in the context of false positives and the resulting disproportionate decisions.
114 Ibid, Para 52 115 Commission “Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market” COM (2016) 593, Art. 13(1) 116 Ibid, Art. 13(1) 117 C-70/10 [Scarlet v Sabam [2011] and C-360/10 Scarlet v Netlog [2011] 118 C-70/10 [Scarlet v Sabam [2011] 119 Commission “Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market” COM (2016) 593, Art. 13(1) 120 C-70/10 [Scarlet v Sabam [2011]
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3.2.3. The US basis for Notice and takedown
In the US, Notice and Takedown procedures are derived from s512 which sets out the requirements for an online service provider to be protected under Safe Harbour.121 The provisions however include a small caveat which indicates the use of technological measures will not necessarily ensure compliance with subsections a to d.122 This could potentially raise questions as to whether services such as YouTube would therefore be protected.
However, there was the case of Viacom v YouTube123 in which it was argued that YouTube and their parent company Google were wilfully ignoring the copyright infringement occurring on their service. The appeals court rejected this argument, but the plaintiffs did contest the technology utilised by YouTube asserting that they fell outside the protection of the safe harbour and have vicarious liability imposed; on the basis that they had the right and ability to supervise and the use of the Content ID system would reinforce this assumption.124 The court however found that they could not be excluded because of the use of these mechanisms.125 Indicating that there use of such a system doesn’t necessarily exclude these platforms from liability, but the court determined that the case would be remanded to the district court in order to make a factual determination as to whether YouTube was protected under s512(c). The provision addresses the requirements for an OSP to be protected from liability on the basis that they are hosting the content.
The implications were noted by Stoke, who stated that despite Google having the technology in place to monitor and filter they would not be obliged to ensure that the system was taking down the content however since then they have begun working with corporate rights holders to provide works for the identification.126 The importance of this is that despite having mechanisms to filter, the courts were reluctant to impose obligations to utilise them in order to retain protection under safe harbour. Lenz v Universal could be seen as an effective legal counter balance to the use of automated systems, on the basis that it required the good faith consideration on the part of the rightsholder as to whether fair use is applicable.127 Further to this, they outlined requirements for the implementation of algorithmic measures stating that it will appear:
“to be a valid and good faith middle ground… consideration of fair use may be sufficient if copyright holders utilize computer programs that automated identify for takedown notifications where: (1) the video track matches the video track of a copyrighted work submitted by a content owner; (2) the audio track matches the audio track of that same copyrighted work; and (3) nearly the entirety… is comprised of a single copyrighted work”128
One point to note with the judge’s assessment in this case is that the reference to use algorithms and computer programs is in the hands of the copyright holder, raising questions as to the position of the OSPs in their regulation of infringing content. Further to this it has been argued
121 17 U.S.C §512 122 17 U.S.C §512(m)1 123 Viacom International v YouTube Inc. 676 F.3d 19 [2012] 124 Ibid, Para 67-78 125 Ibid, Para 83 126 Simon Stokes, Digital Copyright; Law and Practice (4th Ed, Hart Publishing 2014), 201 127 Lenz v Universal Music Corp. No. 13-16106 (9th Cir. 2016) 128 Ibid
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that the judgement in essence allowed “Automatic flagging algorithms to have a free pass”129 this analysis indicates the judgement falls short in the context of the issues arising from their use.
3.2.4 Why do these provisions give rise to blanket claims?
In many respects one can attribute the use of automated systems and thus the rise of blanket claims the need to comply with the provisions under s512(c) of the DMCA and Art. 14 of the eCommerce Directive. Both provisions require that for an OSP hosting content they are required to act expeditiously in order to remove any infringing content once they have been notified about it.130 As previously stated once an OSPs online platform reaches a critical mass of content and users, it arguably becomes untenable to be reliant on human intervention and therefore automation becomes the norm with later developments into the area of algorithmic enforcement.
It is submitted that Stokes implied that the Viacom v Google litigation potentially served as the impetus for their move to making use of Content ID and working with the corporate rights holders.131 This move would seek to mitigate any liability that would arise from an overwhelming number of notifications that could occur, as Viacom were seeking to sue Google on the basis that 79,000 clips that they held copyright over were reproduced across YouTube.132 This indicates the problem, however one cannot just ascribe this law suit to playing a role in causing blanket claims. In Urban’s research on the matter they indicated that the amount of individual takedown requests has been climbing, with it having received 54 million in 2012 with that number reaching 345 million in 2014,133 it is inevitable that with so many claims multiple ones will potentially be brought against a single user.
The millions of claims that are processed by these automated systems, illustrate that when using the Content ID system there is an uncertainty to what portion of the extract it would take to flag up the content.134 This unpredictability of what the algorithm will flag as an infringement is a contributing factor to this sheer number of claims and the blanket claims.
3.3 What are the concerns of Automated Enforcement and Blanket Claims
3.3.1 What are the due process issues that exist within automated copyright enforcement?
The various legal provisions and subsequent compliance that have shaped the systems has given rise to the problems relating to due process. The core elements of these problems come from the suggested minimisation of evidential burdens and the decisions Lenz,135 as they have impacted how infringement is addressed and tackled. This arguably indicates a shift in
129 Michel Jose Reymond, Lenz v Universal Music Corp: much ado about nothing? I.J.L. & I.T. 24(2), 119-127, (2016), 127 130 Art. 14 of the eCommerce Directive and 17 U.S.C §512(c)1C 131 Simon Stokes, Digital Copyright; Law and Practice (4th Ed, Hart Publishing 2014), 201 132 Viacom v YouTube, Para 9 133 Urban, Karaganis & Schofield, Notice and Takedown in everyday practice (2017), UC Berkley Research Paper No. 2755628, 32 134 Perel & Elkin-Koren, Accountability in Algorithmic Copyright Enforcement, Perel & Elkin-Koren 19 Stan. Tech. L Rev. 473 (2016), 513-14 135 Lenz v Universal Music Corp. No. 13-16106 (9th Cir. 2016)
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copyright policy that is suggested to be directed by the systems rather than the contrary, owing to the volume of material and people that the systems can affect.136
The main critique of the implementation of notice and takedown policy is that it takes place on “Private grounds” and therefore lacks the participation of citizens, officials and judges 137 in effect limiting the ability to effectively challenge and question the decisions made by the algorithms. This itself is an indicative flaw with Content recognition mechanisms and the associated ecosystems, in the case of YouTube there is the corporate partners who can remove or monetise the content for themselves.138 The arbitrary favouring and contractual lock-in that occurs between the OSP and Rightsholders comes at the expense of the content creators that form the core of their business model, especially with blanket claims hitting numerous channels that would not be deemed by a court to have infringed copyright.
Urban & Quilter when analysing the notice and takedown procedures on Google between the years of 2002 and 2005, found that many claims that were being brought through the notice and takedown procedures were not a copyrightable claim, as they were on non-copyrightable subject matters.139 The research indicates that with notice and takedown, a substantial portion of these claims are issued with little consideration for what is covered and what falls under the exceptions, aligning with the concerns of the court in Lenz v Universal.
Though when considering the importance of Lenz for this good faith consideration, it was submitted by Perel & Elkin-Koren that it is naïve to expect copyright holders would make an objective and fair determination.140 The indication that one has made a claim in good faith consideration via ticking the box is inherently a mistake, and that when all the evidence that needs to be provided is a copy of the work, assuming good faith is not enough when there is little evidence of ownership or a bona fide infringement.
The issue of responding to infringement notices is arguably one of the greater issues, as highlighted by Urban & Quilter they noticed that counter notices were woefully underused,141 despite the data being taken from a period in which most of these platforms were still in their infancy the issue seems to still be prevalent today. In later research carried out Urban et al note that:
“Material that is targeted by a takedown request is often removed before the target is given the opportunity to respond… this was confirmed in interviews with OSPs and Rights holders…Given the high number of apparently unchallenged takedown mistakes that showed
136 Perel & Elkin-Koren, Accountability in Algorithmic Copyright Enforcement, Perel & Elkin-Koren 19 Stan. Tech. L Rev. 473 (2016), 492 137 Ibid, 493 138 Understanding Copyright: Intellectual Property in the Digital age, Klien, Moss & Edwards (1st Ed. Sage Publishing, 2015), 57 139 Efficient Process or Chilling Effects - Takedown Notices under Section 512 of the Digital Millennium Copyright Act, Urban & Quilter 22. Santa Clara Computer & High Tech. L.J. 621 (2006), 667-8 140 Accountability in Algorithmic Copyright Enforcement, Perel & Elkin-Koren (2016) 19 Stan. Tech. L Rev. 473 141 Efficient Process or Chilling Effects - Takedown Notices under Section 512 of the Digital Millennium Copyright Act, Urban & Quilter 22. Santa Clara Computer & High Tech. L.J. 621 (2006) 679
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up in our quantitative studies, we would expect to see higher numbers of appropriate, good- faith counter notices if the processes were working as intended”142
The indication of this is that there is a systemic problem at the core of automated enforcement, in which the takedown requests take place before all the evidence is on the table something that in the UK the judges found important to answer the question as to whether an infringement has taken place.143 Further to this there is the lack of an “unbiased adjudicator”144 which would be an important element when trying to ensure that nothing is removed without proper cause. In the case of Scarlet, they note the concern for the disproportionate and unfair imposition of an injunction to require automated mechanisms,145 it should therefore be concluded that the disproportionate results produced from these systems raises some questions as to the rationale behind the proposed Art. 13.
3.3.2 False positives and exacerbating factors?
The lack of any independent adjudicator and that these notices are considered and acted upon within private grounds146 create a situation in which the “copyright false positives” issue is not effectively addressed. The issue is then arguably amplified by the use of blanket claims, which when considered in the circumstances of the “three strikes rule” for infringement on YouTube.147 The three strikes rule applies when three takedowns have been brought against one channel, without being contested, the channel and all the content uploaded regardless is permanently shut down.
As stated previously, there is the problem of the content being removed prior to counter-notices being issued148 and this is arguably exacerbated by both the issue of blanket claims and the three strikes policy. Once the account and channel has shut down, there is no actual way to make use of the mechanisms in place, and in essence it is a prima-facie instance of infringement which in many ways is contrary to the principles of being able to have a fair trial or hearing, especially when such decisions are occurring in this private space.
3.4 The damage of automated Systems
A reliance on automated copyright enforcement, has given rise to blanket claims because of the reductive nature of the algorithm. When determining infringement, there are various evidential questions that ought to be answered, while the algorithm is only searching to match
142 Urban, Karaganis & Schofield, Notice and Takedown in everyday practice (2017), UC Berkley Research Paper No. 2755628, 118 143 Ultra Marketing v Universal Components Ltd [2004] EWHC 468 144 Urban, Karaganis & Schofield, Notice and Takedown in everyday practice (2017), UC Berkley Research Paper No. 2755628, 118 145 C-70/10 Scarlet v Sabam [2011] 146 Perel & Elkin-Koren, Accountability in Algorithmic Copyright Enforcement, Perel & Elkin-Koren 19 Stan. Tech. L Rev. 473 (2016), 493 147 Google Copyright Strike Policy
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the input data with the hosted content. As a result, the volume of claims has increased on platforms, with a great deal of them potentially being incorrect. Its impact goes beyond just flagging large volumes of content for removal, as it disrupts the balance between the right to intellectual property and freedom of expression which is why there is a current prohibition on obliging OSPs to carrying out this form of monitoring.149 4. Is there a balance to be struck between the application of fair use/dealing and the use of automated enforcement systems?
4.1. How do these systems undermine the doctrines?
4.1.1 Blanket claims and the impact on Fair Use/Dealing:
In the two jurisdictions it is acknowledged that the defences are to be asserted by the defendant, however in Lenz this burden was arguably moved onto the rights holder prior to their claim.150 Though in the UK it is recognised that the evidence provided by the defence ultimately serves as a tool for the judge to make the decision regarding whether an infringement took place, or if the action was permissible.151 Both circumstances illustrated above when considered in light of blanket claims and the various criticisms of algorithmic enforcement, show the lack of a reasoned judgement utilising the evidence available for each claim that is brought through the systems.
Fair use in the US traditionally is an affirmative defence, requiring the defendant to satisfy the burden of proof and answer four factual questions that are to be asked to be asked, as to the purpose use, substantial nature of the extracts used, and the effect on the market value.152 It is reasonable to suggest that the case of Lenz reversed this, setting it up as a shield for them to rely upon against claims brought online.
While in the UK it is more of a tool for the courts, in which the court will consider all the evidence and look at the common law questions originally expressed by Lord Denning regarding the relationship of length and impression the resulting work gives.153 These are clearly factual determinations that require a strong application which has been noted as a core failing of these algorithmic systems that have been utilised.154 Therefore on this basis, it is undermined because of these algorithms being unable to adequately make these assessments and this is potentially exacerbated by the lack of intervention and elements of the internal enforcement mechanisms.
149 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market [2000], OJ/L178, Art. 15 150 Lenz v Universal Music Corp. No. 13-16106 (9th Cir. 2016) 151 Ultra Marketing v Universal Components Ltd [2004] EWHC 468 152 17 U.S.C §107 153 Hubbard v Vosper [1972] 2 Q.B. 84, 154 Depoorter & Walker, Copyright False Positives, 89 Notre Dame Law Review 319 (2013), 337
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Further to this there is a lack of transparency and clarity as to the criteria for takedowns and how the systems work in accordance with the criteria155 and in lacking this information the impact of the takedowns cannot be predicted. This means that in many cases those that partner with YouTube will potentially take a zealous approach to protecting their copyright, without understanding or knowing the impact that it may have. This also highlights the main problem with Lenz, which was noted that in essence it gave this form of algorithmic enforcement a free pass156 and it negates this good faith consideration because of the lack of information on how these systems work in operation. While Lenz could be considered one of the important cases when looking at the preservation of Fair use in the digital age, it becomes a meaningless in this context. The judgement in Lenz deals with traditional notice and takedown systems, without any automation, and it could form the basis of a new approach. The approach could require a rights holder to stipulate the reasoning the content that they wish to take down would not be protected under any defence; such an approach would be an effective execution of the principles established in Lenz. This move however would only work in the context of these traditional takedown mechanisms, in contrast to the automated methods which will just be scanning through the hosting service to find matching information.
As discussed previously, the three strikes policy under YouTube157 is an exacerbating element to the problem of the blanket claims. This ties in with the problem of fair use/dealing being undermined by the blanket claims, as with the inevitability of these blanket claims taking down works that would be protected by fair use/dealing. Once the blanket claims begin to impact those who would be able to rely upon fair use/dealing, or even their ability submit a counter- notification in order to assert their protection by the defence. This assumption however does ignore the apparent failure and ineffectiveness of the counter-notices158 though this perceived lack of effectiveness and removal of content prior to the counter-notification could be deemed as a contributing factor.
4.1.2 How system and relationships between actors undermine the doctrine?
It has been stated for the defence of Fair use/dealing apply the main considerations from the court is the impression the work gives through either the relationship between the quotation and commentary length,159 or the intentions of the author whether they intended their work to supersede the earlier work.160 These considerations are deemed as an important element, and arguably require an intervening judgement from an individual to determine whether a piece of content can be protected under this defence. Therefore, the use of content recognition and automated takedowns remove this intervening judgement from the equation, even in the circumstances that are set out in Lenz v Universal Music161, which requires the party issuing
155 Urban, Karaganis & Schofield, Notice and Takedown in everyday practice (2017), UC Berkley Research Paper No. 2755628, 119-120 156 Michel Jose Reymond, Lenz v Universal Music Corp: much ado about nothing? I.J.L. & I.T. 24(2), 119-127, (2016),127 157 Google Copyright Strike Policy
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the notice to consider whether the content they are marking for a claim, because content ID removes them from directly looking for infringement.
Human intervention is noted to be one of the elements that is lacking from the systems which has been observed by Urban as being part of the “DMCA Auto” regime,162 which has become ubiquitous on larger platforms such as YouTube and that to tackle the sheer amount of infringing content they have sacrificed human review.163 This is emphasised by Vogele who stated that the notice and takedown system has destroyed fair use and Google due to the astronomical number of takedown notifications they receive do not review the material to see whether it falls under fair use.164 This builds upon the problems that exist from the lack of human intervention in the first instance of a takedown, the lack of later review means there is no oversight in the long term. The lack of long term review of the content shows that Online service providers have little concern for the main foundation of the content flow that makes their platform viable, and not looking to ensure that the defence is something upheld and enshrined within the algorithms they seek to govern their service with.
YouTube and its corporate partners have contractual arrangements which in most circumstances prevent the re-upload following a counter-notice165. It is submitted that under these circumstances the defences importance is diminished, if a video that is supposed to be protected under Fair use/dealing is not re-uploaded, providing little reason to actually challenge a copyright notice brought against a channel. These arrangements arguably exacerbate the initial issues that have come with automation, by making the counter-notification process irrelevant when dealing with these corporate entities. There is arguably a conflict with Lenz v Universal166, because the court ruled that Fair Use had to be considered in good faith by those bringing the notice. Though the contract between YouTube and its corporate partners indicates a form of exemption to the good faith consideration.
4.1.3 Is the inability to rely upon the defences undermine due process?
The other concern that has been expressed in relation to the use of automated systems is that of due process being undermined; Urban et al note the major failing on this part owing to the lack of human scrutiny.167 The common argument regarding fair use/dealing ties in with these comments, as it is in the lack of human intervention which means that they cannot be considered for the individual content, especially in the case of the blanket claims.
There has been research conducted illustrating that those using automated systems had not sought to remove aggressive bad faith senders, as the liability imposed for failing to tackle bad faith requests is limited in contrast to failing to address infringement claims.168 This is a major
162 Urban, Karaganis & Schofield, Notice and Takedown in everyday practice (2017), UC Berkley Research Paper No. 2755628 163 Ibid, 164 Vogele, Where’s the fair use? The takedown of Let’s Play and Reaction Videos on YouTube and Comprehensive DMCA Reform, Touro Law Review, Vol. 33: No 2 589 (2017) 165 Perel & Elkin-Koren, Accountability in Algorithmic Copyright Enforcement, Perel & Elkin-Koren 19 Stan. Tech. L Rev. 473 (2016), 515 166 Lenz v Universal Music Corp. No. 13-16106 (9th Cir. 2016) 167 Urban, Karaganis & Schofield, Notice and Takedown in everyday practice (2017), UC Berkley Research Paper No. 2755628, 117 168 Ibid, 117
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problem that should be rectified because it illustrates further failings with the notion of good faith sending, and that Lenz only really applies in the context of manual review. The due process failing on this part is also noted by others in connection to the counter notices failing to fulfil their statutory purposes.169 Further noting the failings within the system; they also found that the actual notices sent by services like Facebook to be very much in standard form with little information about the actual infringement or reasoning for it.170 Without that relevant information how can one be expected to properly challenge the reasoning behind such a claim, and this arguably is a greater problem when blanket claims are issued.
This itself could be argued to be a fundamental rights problem, infringing upon the right to a fair trial,171 while it could be argued to be a non-issue within the private sphere, EU case law illustrates that this is still a consideration when looking at the imposition of content recognition by law. Though they considered the balancing of the freedom of expression and rights to intellectual property within the Scarlet v Sabam case,172 the question of these rights is valuable when framing the debate as to a fair trial. The fair trial subject matter becomes extremely important in the context of the blanket claims and the three-strike policy; because it removes the ability to effectively challenge the claims. The due process issue is also further noted to be an issue when there is an arbitrary favour towards the dominant copyright holders; with the decision to not reupload content that was taken down at the behest of the partner companies.173
4.2 Balance the rights at play: achieving sufficient protection for all parties?
As stated earlier the current use of automated systems for copyright enforcement has in essence caused blanket claims and undermined Fair Use and Fair Dealing, and potentially the wider list of exceptions in other jurisdictions. In the above it was established that in some circumstances there is an established relationship between corporate rightsholders, and this can impact the effectiveness of the current recourse mechanisms. The arbitrary results of this relationship and blanket claims, thus reinforce false positives.
4.2.1 Making these systems proportionate and balanced
In regard to balancing the defences and considering automated enforcement, there have been some steps taken by YouTube, such as having content creators provide examples to illustrate the “best practices” of fair use offering some protection and coverage for legal costs for those whose fair use videos are taken down.174 While an admirable move it arguably does not go far enough to rectify the problems that exist, especially when there service undermines Fair Use/Dealing with Blanket Claims which removes the ability to challenge them effectively.
This failure to launch the counter notification and wait to see if an actual legal challenge arises and court proceedings start, ultimately makes the “best practices” model and YouTube’s
169 Perel & Elkin-Koren, Accountability in Algorithmic Copyright Enforcement, Perel & Elkin-Koren 19 Stan. Tech. L Rev. 473 (2016), 507 170 Ibid, 507-508 171 Charter of Fundamental Rights, Art. 47 172 C-70/10 Scarlet v Sabam [2011] 173 Perel & Elkin-Koren, Accountability in Algorithmic Copyright Enforcement, Perel & Elkin-Koren 19 Stan. Tech. L Rev. 473 (2016), 515 174 YouTube Fair Use
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willingness to indemnify content creators a toothless policy move that would have little to no impact. While in some cases there will be those who would be able to rely on this, it is a minority especially in light of the vast number of content creators on the website. The three- strike policy175 utilised is arguably the main flaw when coupled with the blanket claims and so any reform internally should be focused on addressing this. A potential solution would be to build in a cooling off period in the copyright strikes system in which a claim brought through algorithmic methods, the first strike would then prevent any others coming about over a limited period of time. This would address the concerns set out in relation to the inability to react and respond to the infringement claims176 and this may still be an issue if the blanket claims leave the content creators swamped with claims that they have to challenge. A mechanism that could be envisioned to tackle this issue and support the uptake of counter-notices, is a blanket counter-notice providing various evidential statements as to the type of content the user uploads and whether it would be fall under fair use/dealing.
4.2.2 The issue with imposing these systems and the attached requirements:
The suggested policy changes for the service providers internally however raises a question as to how tenable they are. One of the main concerns would be whether the internal changes to fit with the protection of Fair Use/dealing and redressing the balance to ensure effective due process would allow them to remain compliant with the safe harbour provisions as they exist currently due to the requirement of expedient responses. This concern however would only really exist for those with a larger user base and therefore a greater chance for potential infringement claims.
The main issue with this moving forward is the potential policy change regarding automated enforcement mechanisms under the proposed directive, it goes contrary to the current legal position within the US which doesn’t impose the obligation. The issue of imposing obligations was flagged up as a potential issue and it was suggested that making it condition for safe harbour should be refrained from.177
The preservation of Fair Use and Dealing in the current safe Harbour frameworks also raise some questions, given the ineffectual impact of Lens v Universal in the wake of automated enforcement. One suggestion would be imposing a prohibition on Content recognition systems as opposed to an obligation to make use of them, as is currently proposed in the EU.178 Though this might not be an adequate approach to take, automated enforcement in many respects is the most efficient way to address the volume of content uploaded through some platforms, and so by prohibiting them from using them might in fact expose them to greater liability. 4.3 Making these systems fit within our understanding of justice
175 Google Copyright Strike Policy
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4.3.1 The lack of recourse and fundamental rights
Altering the systems and law that has created these problems is only one step in the right direction, however the internet does complicate the issue. The internet by its very nature transcends traditional boundaries and jurisdictions which raises questions as to how to tackle any disputes that arise from infringement claims; Vogele discussed the recommendation of their being a “Fair use” board to adjudicate petitions regarding fair use179, however as discussed, the operation of such a body with the internet would potentially be untenable to hear claims from other jurisdictions outside of the US. The conflict that arises from intellectual property breaches online is noted to be an integral part of online activity180, and therefore shouldn’t there be a new dispute resolution approach that takes into account the nature of the internet. The suggestion of this reform was backed up by others, who stated that there should be broader reforms within the U.S copyright office, supporting the notion of a new forum to adjudicate these claims.181 Though in the context of the online nature of the internet such a forum it could be argued that such a body should be established within the World Intellectual Property Organisation (WIPO), though this solution does fail to take into account the localised nature of copyright exceptions. This is evident just in the US and UK jurisdictions; both have a few similarities such as the impression of the video and significance/length of extracts, but then the US doctrine provides more room for manoeuvre compared to the fixed categories of fair dealing182 within the UK. Therefore, for the WIPO suggestion to be remotely viable, there would have to be greater harmonisation internationally, pursuing this would be more of a political challenge.
This element of adjudication and human intervention in order to make the decision to remove content after both parties have issued their notifications would go a long way to alleviate the concerns illustrated previous in the failure of algorithms to reflect the current legal principles within copyright. Though implementing it within the public sphere would be the greatest challenge, and so the other option would be for it to be implemented by the OSPs who host user generated content.
One main issue with making these disputes dealt with in the private space is ensuring the accountability and transparency; a current issue expressed regarding the basis for the decisions made by the algorithms.183 So moving forward with the recommendation set out below, transparency will be an important in ensuring the effectiveness and legitimacy of such an approach.
179 Vogele, Where’s the fair use? The takedown of Let’s Play and Reaction Videos on YouTube and Comprehensive DMCA Reform, Touro Law Review, Vol. 33: No 2 589 (2017), 180 Katsh & Rabinovich-Einy, Digital Justice: Technology and the Internet of Disputes, (1st Ed, Oxford University Press, 2017) 181 Zernay & Hagemann, ACES in the Hole? Automated Copyright Enforcement Systems and the future of Copyright Law, (2017) Niskanen Center Research Paper, 40 182 Copyright, Designs and Patents Act 1988, s30, 30A 183 Perel & Elkin-Koren, Accountability in Algorithmic Copyright Enforcement, Perel & Elkin-Koren 19 Stan. Tech. L Rev. 473 (2016), 497-500
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4.3.2 Online Dispute Resolution and Human intervention; conflicts with OSP Liability Limitation:
A recommendation to address the due process concerns and lack of effective adjudication is that of Online Dispute Resolution. It is probably best defined as alternative dispute resolution within an online space, whether it be mediation or arbitration, with the benefits of being able to make use of the dispute data.184 In the circumstances of user generated content, an online arbitration system could be seen as the best mechanism, relying on the archived content and written testimony from both parties in order to answer the factual questions to determine whether the content should be taken down or reuploaded.
It has been discussed that under the US regime, they are required to deal with any notifications expediently185 which hasn’t been given a defined time frame within the act, or any subsequent case law. The only timeframe given in under the safe-harbour provisions is that for counter- notifications against the infringing party186. Under the EU, the proposed Digital Single Market Directive Art. 13187 there is no reference to any the time in which an online service provider will have to react to any claims, only the requirement that they have to employ content recognition systems.
Both of these legal provisions create potential issues as to the use of ODR mechanisms, because of the potential to interfere with compliance with these provisions. These ODR mechanisms could place an undue burden on OSPs, with proceedings slowing down the process of determining when content is infringing or if it is protected under fair use/dealing. Katsh & Rabinovich-Einy note that there are three core elements to dispute resolution which will be inevitably a part of ODR mechanisms, one being convenience.188 It is on this assumption which indicates there might not be an issue with satisfying the expedience requirements under the US safe harbour provisions.
The main concern arises from the content ID requirements under the proposed directive and that have been implemented by platforms such as YouTube. As it raises the question as to whether ODR would be effective in remedying blanket claims, with the current position it is possible for some channels to instantaneously hit three strikes on YouTube for instance, which is in accordance with S512(i) of the DMCA requires the removal of repeat infringers from the service.189 As a result this would greatly reduce the ability of content creators to adequately access the ODR services, if it were to be made a pillar of the online copyright enforcement framework.
The noted issues with automation is the mistaken takedowns of content which would likely be protected under Fair Use/Dealing, and the lack of human scrutiny of these claims has decreased and so there is an issue of accuracy of takedowns190. While it would be onerous to expect
184 Digital Justice, Katsh & Rabinovich-Einy 185 17. U.S.C §512 186 Ibid, §512g 187 Commission “Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market” COM (2016) 593, Art. 13 188 Digital justice, 37 189 17 U.S.C §512 190 Urban, Karaganis & Schofield, Notice and Takedown in everyday practice (2017), UC Berkley Research Paper No. 2755628, 116
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YouTube to have constant human intervention checking claims, it is undeniable that human intervention is needed, and the least onerous way would be to develop a dispute resolution mechanism arguably tied to the counter-notice procedure which outlines the protection they believe are given to them under Fair Use.
Urban noted the abuse that the content ID system is open to by “Copyright Trolls” and bad faith claimants191 which might be reasoning to have concerns for an Online dispute resolution system being caught up with these fraudulent claims or irrelevant claims. Though it would enable the weeding out of the those who deal with the fraudulent claims, as it was a noted problem that in some cases ownership of the works didn’t need to be proved.192 As such “Copyright trolls” would be forced into a situation in which they would have to establish ownership.
Transparency is another critical issue in connection to the development and use of Online Dispute resolution to address the deficiency in the factual considerations for Fair/Dealing by the algorithm. For such online disputes there should be a degree of transparency, indicating the various factors that would be considered by an online adjudicator by the site, maybe even including significant decisions. This is on the basis that it enables the users to have a greater degree of foresight as to what kind of content is protected and whether or not they would be able to rely on disputing a claim. This would help build the trust and legitimacy needed for such a service within these online platforms.
4.4 Can balance be struck?
The blanket claims that arise from the use of automated enforcement, pose an existential problem to the defences. Though it should be noted that it is not a singular issue, and there are various aspects that compound it, such as the design of the service providers policy frame works and relationships with the rights holders. It is also important to recognise that in some cases the use of automated enforcement is the only viable option to tackle infringement, and the interplay with other aspects of their copyright policies is what causes the damage. Thus it is possible to strike a balance with the right understanding of how to shift the internal policy to bring it in line with the court’s understanding of striking the right balance between the various rights and interests within this online ecosystem. 5. Conclusion
5.1 The defences and the impact of Blanket Claims
While Fair Use and Dealing have similarities, as to the core rationale and some of the factors the judges will consider. Though they are set apart by the UK relying on a closed list of exceptions for Fair Dealing, while the US takes a more flexible approach, and this difference in the digital age could give rise to a degree of uncertainty. Though the main issue, is that these doctrines are challenged by automated systems and the blanket claims that arise from their use, as they fail to accommodate the considerations required by the doctrines. This issue is amplified by false positive notion that drives most rights holders to rely on enforcing their
191 Ibid 116-117 192 Perel & Elkin-Koren, Accountability in Algorithmic Copyright Enforcement, Perel & Elkin-Koren 19 Stan. Tech. L Rev. 473 (2016), 515
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rights through these systems, and the lack of the effective recourse to address this has tightened the grip of the rights holders. These problems only stand to be exacerbated under the European commission’s current proposal to introduce an obligation to use content recognition systems193 which has been deemed by some as an incorrect policy move.194
It should not be forgotten that these defences serve to establish a balance between the freedom of expression and the right to intellectual property. The balance between these two rights formed the basis of the CJEU’s decision in Scarlet objecting to an injunction requiring the general monitoring for infringement.195 While there is no prohibition under law for using content recognition systems on a voluntary basis, the case illustrates a concern that the use of such systems fail to strike an adequate balance. In light of fundamental rights, the right to a fair trial should also be considered an issue, because of the lack of adequate recourse or ability to assert the defences effectively. Though it is not tenable to prohibit the voluntary use of automated enforcement, the volume of content on some platforms, make it impossible for human review to be carried out for every claim.
5.2 Recommendations
Article 13 of the proposed Digital Single Market Directive, should be removed from the directive, as the voluntary use of automated notice and takedown systems cause enough problems and creating an obligation can only increase the frequency of blanket claims. This potentially will cause further damage to the doctrines. On the subject of legislation, it is desirable that the current safe-harbour provisions be amended to include provisions that protect the defences, by requiring any company using automated systems to have stronger mechanisms enable an effective reliance on them. The aim of this proposal would be to strike the balance between the rights that the courts have in mind when making decisions on such cases.
Further to the legislative recommendation, there are changes that can be made to the internal policies of the OSPs, in order to reflect the defences without the legislation or in order to comply with the suggested changes. First would be to modify the three-strike rule and its application, if a blanket claim were to strike a user, they should be granted immunity from hitting the three strikes in that instance. With only one strike against them under these circumstances, it would alleviate the concerns that no recourse could be pursued; as they would be able to access their account and launch counter notifications.
Second to this would be establishing a new counter-notification system, designed to specifically to address blanket claims. At its core, this system would enable a user to respond to an entire blanket claim, or respond by grouping similar content, and providing their argumentation as to why that content would be protected under the defences. It stands to reason that the sheer volume of content that could be flagged by a blanket claim, has an efficient mechanism to challenge the alleged infringements.
Finally, in regard to internal policy decisions, contracts that arbitrarily favour the rights holder should not be able to prohibit the reuploading of content following a successful appeal. This
193 Commission “Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market” COM (2016) 593, Art. 13 194 Zernay & Hagemann, ACES in the Hole? Automated Copyright Enforcement Systems and the future of Copyright Law (2017), Niskanen Center Research Paper, 36 195 C-70/10 Scarlet v Sabam [2011]
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contractual mechanism along with blanket claims, strengthened the position of the rights holder beyond what is reasonable. Therefore, it should be accepted that ensuring reuploads is in the best interests of ensuring the integrity of the defences moving, and no contract should seek to block this.
ODR, online arbitration more specifically, could serve as a final backstop and provide for an effective recourse mechanism. It would provide for a cross-jurisdictional forum in order for the evidence to be considered before a final decision is made as to whether content in permanently removed. Online Arbitration could be tied to the current counter-notification procedures, in which if the counter-notice is challenged, Online arbitration becomes the next step rather than litigation. Though given the international context of the internet and such disputes, the applicable defence needs to be determined as an international norm to ensure consistence in decisions; this would be hard to determine as both have their merits.
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Bibliography
EU Legislation Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market [2000], OJ/L178/1
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David Bainbridge, Intellectual Property (7th Ed. Longman Publishing 2009)
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Dr Ian Hargreaves, “Digital Opportunity, a review of intellectual property and growth”, (2011)
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Zernay & Hagemann, ACES in the Hole? Automated Copyright Enforcement Systems and the future of Copyright Law, Niskanen Center Research Paper (2017)
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Commission “Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market” COM (2016) 593
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