User-Generated Content Services and Copyright Issues
Cannes, France-- Could you be arrested for uploading my film or clip on the internet? India Eu Film Initiative (www.iefilmi.com) brings you a fascinationg debate on the content that you as an ordinary user of the net generate.
Down on the Riviera, they’re talking Youtube, DailyMotion and MySpace. The Cannes Film Festival is in full swing and one of the buzz topics on the Croisette this year is the issue of copyright with regards to User Generated Content (UGC) services and the millions of short films or music clips they host. Clearly, the vast number of works uploaded daily without any regard for copyright is of ongoing concern to the film, music and television industries.
Keeping its finger firmly on the pulse of such issues, the Strasbourg-based European Audiovisual Observatory has just released a brand new report entitled: User-Generated Content Services and Copyright.
Francisco Cabrera, a legal analyst at the Observatory and author of this report, starts by examining the concept of user-uploaded content and states that persons uploading content for which they do not hold the copyright onto one of the UGC sites “are primarily responsible for the content they make available to the public and can be held liable for direct copyright infringement”.
However, the UGC service providers who host this content consider that they are just host providers and do not have prior knowledge of the content uploaded, do not monitor content uploaded and therefore cannot be held responsible for resulting copyright infringement. Some big media companies clearly do not share this viewpoint…
Moving on to examine the possible courses of action open to rightsholders, the author states that they have two choices: “to litigate or to licence”. It is complicated and possibly not too productive to sue individual uploaders (the primary infringers).
Asking UGC sites to remove content does not necessarily guarantee that the films won’t turn up elsewhere. The solution chosen by most big media companies such as TF1 or Viacom has therefore been to argue that UGC sites are not host providers but rather “publishers of content” and to sue them (Youtube in this case).
Focusing on the European legislative framework applicable to such cases – the e-commerce Directive – Cabrera states that, according to the Directive, a host provider is “not liable for user-uploaded content as long as it does not have actual knowledge of any illegal activity… and is not aware of the facts or circumstances from which the illegal activity…is apparent “.
The big question here is whether or not UGC service providers are actually host providers. Given that certain terms in this text are wide open to interpretation, Member States applying this legislation have to apply it in the context of their national legislation. In order to illustrate this, the author then examines several key cases under French legislation. The report also goes stateside in order to examine the recent Viacom action against Youtube.
Leaving aside litigation as the only option open to rightsholders, the report moves on to look at other solutions. Licensing works for publication on UGC sites has been practiced by content providers such as the BBC, Universal Music Group or Sony Music Group. Partnership deals with UGC sites now exist. Turning to technological solutions, Cabrera also looks at filtering copyrighted works via electronic fingerprints which make it possible to track their illegal upload onto UGC sites.
DailyMotion and Youtube have both announced recently that they will make use of this technology. The author does not rule out legislative intervention as a possible solution with a review of the provisions of the e-commerce Directive in order that they better address new business models such as UGC sites.
Cabrera concludes that a common sense approach is needed: “The future of content distribution requires a common approach that makes sense to all parties involved”.
