How To Solve The Digital Creative Copyright Paradigm

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Imagine if no artist had ever signed their canvas. What would the art market look like today, how would works be attributed; valued, bought and sold?

Artists do identify their work and have access to well organised and established routes to revenues via direct sales to private buyers, artists’ agents, galleries, auction houses and Collection Societies.

Artists income improved following the introduction into law of The Artists Resale Right’ entitling an artist to share in the proceeds of re-sales of their work. Like photographers, artists retain the copyright and earn an income from both the resale of the original work and in any prints or merchandise spin-outs bearing a copy of the image.

Due to the professional market infrastructure artists do earn an income from their creations which supports the original purpose of the introduction of copyright back in 1706 (Statute of Anne)

Authors also have an infrastructure in place and their works are easily identifiable by author name and ISBN number attributed to them by their publishers.

However, in the digital age an abundance of unattributed creative works are regularly posted, promoted and shared on the internet and social media platforms.

Creators across the globe regularly upload their work but the vast majority of imagery, animations, designs, illustrations, photographic images, infographics and so forth carry no form of identifier*.

When images and other creative work remains on an owners website they are able to retain a degree of control over attribution and permissions. 

However, once divorced from the Creators website, swept up by search engines and returned in image search results without embedded or visible Meta Data, it leaves internet users unsure of who the work belongs to or whether it is free to use, requires permission, a license and/or payment.

*Identifiers include  ISBN numbers (publishing); a Creative Barcode IP tag with live link to Creators Meta Data and usage terms (all types of Creative Works); or at a very minimum the Creators own name.

The majority of internet users have little understanding of copyright and usage permissions.

Instead there is a growing general belief that anything that can be digitised and uploaded to the internet is free to access; free to view and free to use without permission or payment.

The expectation of ‘fast access and free use’ requires re-balancing in order that Creators maintain the ability to earn an income from their creative (intellectual) property and to avoid risks to creative & cultural heritage, arising from ‘creator unknown’.

Social media platforms and image search engines are doing very little to assist internet users to understand that works returned in search results does not mean the owners’ permission to use the work is not required.

Orphan Works

Creative work worth over £500 billion is at risk.

The absence of embedded identifiers in creative work placed on the internet will significantly increase the risk of becoming an ‘Orphan Work’, or creator unknown.

Visual imagery is the largest segment of creative works at risk including illustrations, designs, photography, animations, cartoons and so forth.  

And changes to copyright law is pertinent to the owners of these works as recent changes now only require an individual or organisation to undertake reasonable due diligence to identify the owner and request permission to use. If their search does not lead to the owner they would be at liberty to use the work without obtaining permission. The owner would find it difficult to pursue copyright breach and retrospectively claim payment.

An orphan work remains protected under copyright but if the creator or rights holders cannot be identified or contacted they put their own work and remuneration at risk.

Governments are beginning to introduce legislative frameworks for the digitisation and use of orphan works on a large scale basis which is leading to significant change in copyright law.

The introduction of exceptions to copyright is just the beginning such as the recent EU exceptions for private copying, pastiche and parody. Further changes are likely to enable cultural and heritage organisations such as museums and libraries to digitise collections and commercialise orphan works, without requiring the permission of the absent rights-holder.

The UK and Ireland are embarking on establishing central databases of orphan works to be accessed online and a license obtained to use the work in return for a commercial fee.

If the rights holder emerges and identifies themselves to the registry they can claim their work, remove the orphan status and they may be entitled to a fair compensation from payments received for its use. However, the rights holder will have no recourse over the level of payment the registry charged nor be entitled to retrospectively withdraw licenses already issued under orphan works status.

But cultural and heritage organisations do not pose a significant threat to Creators, the big threat is the social media platforms and search engines.

Imagine if Google and its brands such as Facebook and Instagram put their user terms and conditions into commercial action.

 ‘All content uploaded by user’s grants a worldwide royalty-free license to [the platform] authorising their use of content in any manner they choose, including commercial’.

YouTube purchased by Google in 2006 for $1.65bn, is gearing up to launch their ‘paid subscription service’.

It recently communicated its intentions to Creators of popular channels, that it will offer advertising free videos along with a service that entitles the paid subscribers to store videos offline on their mobile devices for around $10 per month.

Content Creators will be able to put their videos behind a paywall enabling only paid subscribers to view them.

YouTube intends to share subscription revenues with Creators which is arguably half decent of them. However, You Tube retain 45% of the revenue and the remaining 55% is pooled. The % revenue a Creator makes from the 55% will be determined by the length of time viewers spend watching their channel. Therefore, it will favour the larger players over the niche, innovative or start-up channels.

Creators who do not wish to participate in the ad-free paid subscription offer will see their videos set to private-view status and hence further reduce their visibility and opportunity to earn revenues from their Creations.

If other platforms continue down a similar road and let’s say they decide to select the best Creative works and determine what is free to use or view and what is subject to a paid license, the professional Creative Industries could find themselves well and truly disadvantaged both commercially and in the control over who is permitted to view their work.

And surely this move runs contrary to Googles’ utilitarian claim that access to knowledge and information should be free and open to all?

Some may recall the media storm that erupted in 2012 when immediately following Facebooks’ purchase of Instagram it announced it had the perpetual right to sell users’ photographs without payment or notification. An apology swiftly followed and the offending remarks were removed from Facebooks upload policy.

It illustrates the risks to Creators who upload original creative work to platforms which state in their terms and conditions that owners, by the act of uploading, grant an irrevocable worldwide unremunerated license to the platform to use materials in any manner they see fit, including advertising and other income generating activities.

Creators can opt to join a Collection Society...

 - should one exists for the sub-sector of the creative industries they belong to. A recent EU announcement of Extended Copyright Licensing regulations has formally given authority (under strict guidelines) to Collection Societies to license and collect revenues for works on behalf of members and ‘non-members’. In other words, with a mandate from the sector they represent, Creators’ works can be licensed by the Collection Society beyond their current remit, on whatever terms they negotiate.

If a significant percentage of the sector mandate their Collection Society to enter into an Extended Copyright License, non-members works could also be licensed.

However, Google and its platforms do not pay license fees for use of content.

The news publishing sector has fought that battle and by and large lost as Google can drive significant traffic to a news site whose content they are aggregating.

So Collection Societies may also be fighting a losing battle as more revenue generating distribution channels open up for the film, games and music industries. Some Hollywood Studios are now using channels such as Bit Torrent to distribute the works they own the complete copyright in, direct to paid users.

The options for Creators are narrowing as platforms fight for creative content, without incurring license fees and commercially exploit it whilst retaining the lion’s share of the revenues. Leaving the entire content community to disproportionately share the remaining revenue determined by the dominate platforms and on terms they dictate.  

Creators can gain some control if they at least identify their copyright works using any form of identifier whether a Creative Barcode IP Tag URL embedded in works leading directly to Creators details, source credits, usage terms and so forth or even just their own name, Country and web address. At a minimum an identifier ensures the work does not become labelled an Orphan Work.  

Without including an identifier the owner of a work makes it unnecessarily difficult for anyone seeking to locate them and ask for permission to use, paid or otherwise.

Those who wish to apply a source credit, are most likely to cite the name of the platform / publisher the item was discovered on, such as a design Blog, Google or even just ‘the internet’.

Additionally, lack of identifiers and inaccurate source credits will cause problems not only for the Creators but also for the accuracy of creative, cultural and social history.

Consumer Groups and Platforms owners are pushing for weaker and weaker copyright laws and in doing so reduce the opportunity for Creators to earn a living from their time and talents vested in their creations.

As the owners of works, Creators do hold a seat of power and retain talent which cannot be easily taken away from them. And an opportunity exists to build a direct to user licensing platform that collects micro-payments from asset users for direct distribution to the Creators.     

In the meantime, Creators and those that represent them should be uniting and demanding that Platform upload policies be amended to recognise the owners IP Rights in all works that carry an identifier. Without amendment the risk to the creative industries could be considerable.  

And the final thought goes to .......

Vin Diesel’s Socks, a one minute film-short produced by My Pockets for Film Nation for The Industry Trust. It was published on You Tube on 15th October, 2013 and illustrates perfectly the danger of non-remuneration of the creative industries – in this particular example the focus is on the film sector but the point it makes applies across the creative industries. It’s a very clever piece! Click on the link below:




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