User-generated content in a legal vacuum

The mid-term review of the European Commission's Licences for Europe1 stakeholder dialogue has presented three proposals on how to deal with user-generated content (UGC) in future copyright. The proposals developed by a dedicated Working group - which meets for the fifth time in Brussels today - are rather scant: more transparency on what users are authorised to do on platforms, easy to use tools to attach metadata and ID to content files and more awareness-raising of the legal environment. These do not look like a breakthrough. At the same time, there is already much more content created aside the classical “rightholders / copyright system” by creator-users. Beware, copyright reform might come too late.

User-generated content

“Creativity needs protection and protection needs copyright,” has so far has been the mantra of rightholders, more often big distributors than original creators in fact. Yet, after years of strengthening copyright legislation and enforcement and the final failure of yet another attempt to create a “gold standard” (according to big rightholders) for intellectual property protection (with the Anti-Counterfeiting Trade Agreement), there seems to be a broad agreement, even in the European Commission,  that some fundamental questions should be asked.

Should non-commercial uses of protected material be allowed and compensated for in new (collective) ways? Should file-sharing be discussed anew? How should user-generated content be protected and by whom? The UGC group (as well as the three other working groups of the Licences for Europe dialogue) initiated by EU Internal Market Commissioner Michel Barnier and his colleagues met four times in 2013 to debate these questions. On their way though, they lost many participants. European Digital Rights (EDRI) members were the first voicing strong opposition. In May, a coalition of organisations interested in open data (including the Open Knowledge Foundation), left.

Musicians navigating the traditional rightholder system

When attending the Midem annual music fair in Cannes, France, one gets a glimpse on how musicians start to re-invent music distribution. Originally a fair where musicians and their agents were meeting the labels, deals were cut for the more lucky ones and talent was exposed to the majors, Midem now draws tech companies driving self-production, ego-marketing and crowd-funding of albums by fans.

Sonicbids, Sellaband and Soundcloud have all been presenting themselves there for some time – and musicians like Imogen Heap or Zoe Keating have explained there how they succeeded in setting up their business as musicians using tech tools and fan-support.

How much has copyright helped them? Heap in fact rather decided to start her own label, Megaphonic, when dropped by Universal, after the major took over her original label Islands records. She received a Grammy Award 2010 with her self-produced Album “Ellipse” for best engineered album, non-classical and is just about to release her fourth album – with users' voice bits included in at least one of the titles.

New licenses versus changes in legal framework

EDRI, in a letter to Commissioner Neelie Kroes, warned back in February that the scoping of the licence for Europe stakeholder discussions was preventing real copyright reform. “We believe that it is fallacious to argue that the legal framework must remain outside the discussions, when we are being effectively asked to design workarounds for the shortcomings of the current acquis." Instead, EDRI recommended to urgently discuss participative culture and questions related to freedom of political, artistic and cultural expression.

Asking for licenses to allow such expression would be a step-back from existing “fair use“-like exceptions for the creation of such content by users. For EDRI, user-generated content obviously is something of a misnomer, somehow allowing for it to be squeezed into a system of IP protection. On the other hand, Australian IP-law expert Kimberlee Weatherall warned that the framing would reduce user-generated content to non-commercial content only. Weatherall thereby means that user expression on the net could be downgraded to become second class content.

Civil society organisations propose alternative copyright

EDRI member La Quadrature du Net went further and presented its own version of copypright reform, adressing both aspects of UGC. Beside free and non-commercial exchange of everything on the web, the group puts forward a copyright 2.0 model (by Marco Ricolfi) for creations by users sharing via commercial platforms. According to the model “works would be placed by default under a regime similar to a Creative Commons licence, except when their author would opt for the classical model of copyright."

While helping to prevent undesired commercial exploitation or, re-appropriation for that matter, copyright 2.0 would still have to recognise "non-market sharing of digital works between individuals as this right can not depend on the will of a particular author."

Pirate Party members Rick Falkvinge and Christian Engstroem have published another proposal for copyright reform. Mainly focused on filesharing, their main focus lies in the legalising of file-sharing. User-generated content is here close to a non-issue.

“Will you pay me?”

User-generated content meanwhile is explored further not only by artists like Heap and many others, but also in traditional news publishing – see the Guardian's “Witness“ site. “Will you pay me for my GuardianWitness contribution?” the FAQ of the site reads and the Guardian’s answer is, perhaps, when we decide to commission a blogpost, and, perhaps, if a third party buys interesting material from there.

The need to legally address all the future user-generated content issues will not go away, even if creators and businesses navigate around an outdated law today. Can the EU be bolder?