Appleyard Lees

Fair use by design

Has online enforcement of the rights of copyright work holders unfairly upset the balance with freedom of expression, as exercised through fair use of the work?  How may a fair equilibrium be restored?   Professor Niva Elkin-Koren provoked debate at the 12th Annual International Intellectual Property Lecture, Emmanuel College, Cambridge, on Tuesday 14 March 2017.

Hosted by Dame Fiona Reynolds, Master of Emmanuel College, this annual lecture seeks to challenge the boundaries of intellectual property law, inviting discussion from leading academics and prominent practitioners.  Invited by Lionel Bently, Herchel Smith Professor of Intellectual Property Law at the University of Cambridge, Niva is the founding director of the Haifa Center for Law & Technology (HCLT), the former dean of the University of Haifa,  Faculty of Law and also a Faculty Associate at the Berkman Center for Internet & Society at Harvard University.  Niva’s much-published, authoritative research focuses on the legal institutions that facilitate private and public  control over the production and dissemination of information.

Casting us back to the rise of the global internet in the 1990’s, Niva described how policy makers sought to combat emerging online piracy.  In an attempt to balance this nascent threat against permissible freedom of expression, takedown notices for infringing material became the primary mechanism for online copyright enforcement.  Looking back now at this experiment, as Niva termed it, was the desired balance achieved?  Has the use of takedown notices become abusive?

Fair use of copyright work, distributed via the internet, has become increasingly – and unjustly – the target of takedown notices.  In determining whether the use made of a work in any particular case is a fair use, the factors to be considered include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole and the effect of the use upon the potential market for or value of the copyrighted work.  While fair use is an American doctrine, the ubiquitous presence of US online intermediaries, such as Google, YouTube and Facebook, means that fair use has been effectively adopted to a global extent.  This is particularly relevant, because takedown notices are implemented directly by these same global, online intermediaries.

In an online world controlled by machines, robo-notices are issued by machines to other machines, that in response and automatically, takedown the allegedly-infringing works. So issuing takedown notices has become part of algorithmic decision making processes, in which the machines crawl the internet for content, identifying allegedly-infringing works and reacting as programmed.

Yet studies suggest that not only do the majority of such takedown notices relate to non-copyright works but the majority of these takedown notices are sent from a single source.  Furthermore, the algorithmic decision making processes are unable to contemplate fair use, such that allowable use of copyright work is unjustifiably targeted – and then taken down.  Niva highlighted numerous and diverse examples, including the silencing of President Barack Obama.  The safeguards put in place in the 1990’s, intended to uphold copyright, have become abusive. All this without legal oversight.

Challenging the takedown notices is an option – or is it?  Online intermediaries, such as YouTube, warn against such challenges aggressively, citing that the challengers’ personal information will be forwarded to the copyright holders, who may file lawsuits against them and claim damages.  Perhaps unsurprisingly, the takedown notices go almost invariably unchallenged.

But change may be ahead.  In the pivotal case of Lenz v. Universal Music Corp., the United States Court of Appeals in 2015 affirmed an earlier US District Court, holding that copyright holders must consider fair use in good faith before issuing a takedown notice for content posted on the Internet. Stephanie Lenz had posted on YouTube a home video of her children dancing to Prince’s song “Let’s Go Crazy”.  Universal Music Corporation sent YouTube a takedown notice pursuant to the Digital Millennium Copyright Act (DMCA) claiming that Lenz’s video violated their copyright in the “Let’s Go Crazy” song.  In response, Lenz claimed fair use of the copyrighted material and sued Universal for misrepresentation of a DMCA claim.  Now, the US Supreme Court wants to hear more about the legal issues underpinning this case before granting review.

Could determination of fair use be automated, similarly to the algorithmic decision making processes that identify alleged infringement?  This, Niva proposed, presents a potential solution for the online intermediaries in light of Lenz and a counterbalance to indiscriminate robo-notices.  But this fair use rebalancing brings challenges not only in the judicial oversight required for global online implementation but also in computing.  What developments in artificial intelligence (AI), for example, are necessitated to distinguish fair use in good faith from other infringing use?  Could a machine ever comprehend parody and act proportionately?

Niva’s lecture divided opinion, as clearly evident from the passion in the questions.  What if transformative use increases the value of the allegedly infringing work?  Should we not abandon robo-notices entirely?  Is it not for the copyright owners themselves to grant acceptable usage rights?  And how could a statutory right ever be replaced with a mere algorithm? Niva’s lecture was once again a rare opportunity to incite intense thought – that will certainly shape a more equitable future for copyright.

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