YouTube finds a safe harbour

It's a worldwide epidemic, we’ve become digital addicts, and it’s happened really fast. You know who you are. You twitter, you hyperlink, you network and upload, you download, listen, watch, copy, mash stuff up and send you creations back out - ‘there’ to be shared. The internet has become an incredible source of inspiration and interconnection, a place to express creativity and a means to promote and market artists. But there’s always been the niggling issue, who’s paying for all this? How can we make money from it? Who ‘owns’ what? And what counts as stealing?

For the last couple of years, media giant Viacom has been trying to prove that YouTube, and its owner Google, has been committing ‘massive copyright infringement’ by knowingly using their copyrighted material, particularly highly popular television, sports coverage and movies, to earn advertising revenue and drive web traffic. Last month, the US District Court Judge, Louis Stanton, handed down his summary judgement in favour of YouTube, leaving Viacom to lick its wounds and power up for an appeal.

At stake, potentially, was YouTube, as we’ve come to love it. Had it gone the other way, YouTube might have been seen to be responsible for preventing its users uploading copyright protected material, suggests Dr Jean Burgess, an Associate Researcher at the ARC Centre of Excellence for Creative Industries and Innovation at QUT. Try a quick reflection on the reported 24 hours worth of footage uploaded every minute, and the messy mix of amateur, professional and remixed material that’s stored there and you can imagine how unfeasible enforcing such a restriction would be.

The case is however, in its more murky underbelly, less about the copyright infringement itself, than about who profits from it; and the messy world of redressing failed contractual negotiations through the courts. It's well recognised that copyright material is being widely used in a myriad of ways, and YouTube have made a number of deals with copyright holders, such as music companies, to share any attributable revenue. With Viacom however, YouTube couldn’t agree on how much that was worth. Viacom it seems, thought it was worth enough for a $1 billion lawsuit.

The decision in favour of YouTube hung on the ‘safe harbour’ provisions of the US Digital Millennium Copyright Act (1998). A 'safe harbour' is as it sounds, a shelter from a storm, Professor Brian Fitzgerald, from QUT’s Faculty of Law and its ARC CCI explains. ‘It’s an area of the operation of your business where you are immunised from certain levels of liability under the copyright act.’ So long as you don’t have knowledge of the unauthorised use of copyright material or induce people to use material unlawfully, you are protected in the safe harbour.

It comes with responsibilities however, when a copyright holder notifies a provider or host such as YouTube that the material on the site is unlawfully, YouTube must quickly remove it. YouTube were able to show that they have responded to hundreds of thousands of notices to take down offending material, and have often done so overnight.

Removal of copyright material in this way is still a considerable restriction on the creative ways people are mashing up material on the net. Dr Burgess gives a simple example of a 13 year old girl who makes her own clip of favourite Justin Bieber photos to her favourite Bieber song. She could wake up one morning and find the soundtrack missing from her video. She has some fair use rights herself, but her ability to defend her own work, even if that might only require a letter to YouTube, is unlikely to be a match to the copyright owners.

It’s an interesting aside, to consider the unexpected social role, we as YouTube’s users have created for it. ‘YouTube has become… an enormous archive of popular culture ephemera,’ says Dr Burgess, ‘and its incredible fragile.’ Australians have uploaded everything from episodes of Countdown to their favourite weather reports, almost anything that’s been hanging around in the their VHS collection. But it just takes one rights holder to issue a notice and that content can be gone. ‘There’s no reason that YouTube has to keep that stuff or indeed that YouTube has to keep existing. It’s got this enormous public value but it hasn’t got any public responsibility when it comes to culture,’ Burgess says. As we upload more and more of our lives the cultural investment also increases, but how can we balance the social values, when we are still struggling with how to balance the commerical?

Because, the other side to all that free-use and cretivity, is how to ensure that artists continue to receive income for the use of their work on the internet, whether it’s hosted, distributed or stored. Traditional ways of buying, selling and distributing copyright products are changing, most obviously with music, but increasingly so with books, and other media are likely to follow (on-demand video for instance). These are big issues for big corporate players and big artists. For new and emerging talents obscurity might be considered much worse than copyright infringement, and the anarchic opportunities of the internet have opened potential worldwide audiences. People are prepared to wear a lot of use of their work, just to get known. Eventually, everyone working in the production of creative content wants to get paid for their efforts. In the same way however, traditional ways of remedying copyright infringements, ie. going through the courts are unlikely to be a cost-efficient, timely or effective.

What’s needed is a different approach from the content industries to managing rights, says Prof. Fitzgerald. We need to create new business models that will actually harness the power of the network, and reap the rewards rather than relying on the heavy enforcement of digital rights management. And the sounds coming from the major film, publishing and music areas, he says, are positive.

What might these models look like? Perhaps it might be a levy on an your monthly ISP fees; $10 bucks extra for an all-you-can-eat service that lets you download or upload anything you want. It could be a tax at the front end, when you buy a computer, or an iPad. The revenue raised can then be distributed to artists and copyright holders. Other models may try to leverage revenue on the flow of copyright material, rather than maximising royalties on a single first-point of sale. ‘It’s all about monetising the use, rather than trying to regulate the use… but there’s still a way to go,’ says Fitzgerald.

These cases may still be in the courts, and obviously for now, the big players are hedging their bets and continuing to pursue remedies through the courts. It’s likely however, that the greater dividends for the corporations and the individual artists, crafts-people, actors, and performers involved in these creative endeavours will be better served by investment in new models.