Two Takes on Copyright Principles for UGC Platforms
A couple of weeks ago, a group of commercial copyright owners and operators of several user-generated content (UGC) services issued a set of Copyright Principles for UGC Services. To their credit, these principles include "the accommodation of fair use" among the goals. The main thrust of the principles, however, is to call on UGC sites to take more active responsibility for preventing users from posting infringing content -- and in particular, to implement filtering technologies to identify unauthorized copyrighted content automatically.
The principles go into significant detail about how UGC sites should combat infringement, while the nods to fair use consist of little more than bare references. For example, the shortest of the fifteen principles is number six, which reads in its entirety: "When sending notices and making claims of infringement, Copyright Owners should accommodate fair use." Stating a general commitment to accommodating fair use is certainly welcome. But it doesn't provide any guidance on the tricky practical questions concerning what such a commitment actually means and how to make it real and effective. Accommodating fair use is not a straightforward task, particularly where companies are relying on automatic filtering tools. Filtering tools may be able to identify unauthorized copyrighted content, but they can't parse the nuances of fair use.
Today, EFF and several other organizations released a set of principles aimed squarely at providing more detailed guidance for the fair use side of the UGC equation. These Fair Use Principles for User Generated Video Content call for granting a "wide berth" for uses that are creative and noncommercial in nature (e.g., using a clip as part of an original video, as opposed to just posting a verbatim copy of the clip); targeting any automatic, technology-based blocking to cases that appear to involve verbatim copying, while providing for human review of cases where the content appears more mixed; and providing effective ways for content creators to dispute the conclusions of automatic filters or content owner takedown notices.
Clearly these are important ideas. In particular, human review of close cases and meaningful mechanisms for individuals to challenge erroneous takedowns or blocking seem like essential elements of any serious scheme to leave room for fair use.
The two sets of principles don't necessarily conflict. One cites accommodating fair use as an important goal, without elaborating on it much. The other seeks to flesh out how that goal might be accomplished. But I think it's worth noting that the companies' Copyright Principles also say that the filtering technology UGC services deploy should have "the goal of eliminating from their services all infringing user-uploaded audio and video content" that content owners have asked to have blocked (emphasis added).
This is where I think some tension creeps in. Any technology that truly aims to "eliminate all" infringing uses will need to err consistently on the side of overblocking, and will very likely end up blocking some fair uses. Filtering technologies may need to be a little less ambitious -- and willing sometimes to err on the side of letting some identified content pass -- in order to strike a balance with fair use.
This reflects a broader point in the overall digital copyright debate. Efforts to prevent 100% of infringement are likely to cause serious collateral damage to values like fair use and free expression (as well as failing to achieve the 100% goal anyway.) As CDT noted in our 2005 paper offering a framework for thinking about digital copyright issues, the goal of policy in this area needs to be making infringement relatively unattractive and tolerably rare -- not reducing it to zero. Companies working on filtering technologies should keep this point in mind, and take a careful look at the Fair Use Principles released today.