User-Created Content Shows Uncertainty In EU Copyright Law

By David Cronin for Intellectual Property Watch
BRUSSELS – Uncertainty surrounds the application of European Union copyright rules to material uploaded onto the internet by private individuals, a new study has found.

Recent years have seen a proliferation of websites such as Facebook, YouTube and Flickr which allow their users to post photographs, articles, videos or music.

The popularity of such sites has grown exponentially since the EU’s 2001 copyright directive was drawn up. While this law allows exceptions from intellectual property rules for some activities undertaken by public libraries and for the use of material designed for visually impaired people, it does not properly address the question of ‘user-created content’ on the internet, according to Lucie Guibault from the Institute for Information Law at the University of Amsterdam.

In a report presented in Brussels on 7 November (and not yet available online), Guibault said that the exceptions allowed by the copyright directive are “too narrow” in scope. A specific exception relating to user-created content should be considered, she added.

Speaking at a seminar organised by the European Commission, Guibault noted that copyright infringements arise if the maker of a home video accompanies his or her images with music from a commercially-available recording. “Currently, there is no method to obtain permission” from the relevant rights-holder before such a video is posted on the internet, she said.
But the study also says that it may be “premature to introduce an exception for user-created content” as “the need for such an exception and its possible contours are still too vague.”

Another problem identified in the report relates to cases when an individual transfers the rights for material he or she has produced to a firm operating a website. As things stand, there are no common rules across the 27-country EU on this matter. Whereas France, Belgium and Germany have laws on their statute books to offer some protection to the author in such cases, a full “transfer of rights” may occur in Britain or Ireland, she said.

The situation is even more complicated when it comes to people under 18, who are known to be among the most avid users of social networking and file-sharing sites. Contracts concluded with minors in the Netherlands can have legal validity on their own but in Germany, parental approval is required beforehand.

Because of the lack of clarity in this area, the study recommends that common rules relating to minors should be introduced across the Union.

Natali Helberger, also from the University of Amsterdam, suggested that conventional models for information law appear antiquated when faced with the challenges posed by user-created content.

The two main legal regimes applying in this field are known as the “publisher model” and the “hosting model”. Under the former – which mainly relates to broadcasters and journalists – a publisher assumes full liability for material he or she has produced or has received from a third party. Under the latter, a website simply stores information and takes no responsibility for its content.

In Helberger’s view, most sites that allow users to create their own content do not fit either of these models. For example, there is “much uncertainty if YouTube is hosting or not,” she added. A number of legal actions are pending against Google, the owner of YouTube, over allegations that it is infringing copyright by carrying material from television programmes and commercially-released movies. These include a case launched by Mediaset, the firm controlled by Italian Prime Minister Silvio Berlusconi, which announced earlier this year that it is seeking damages of €500 million euros from Google.

Helberger stated that information law has generally been prepared with “professional players” in mind, whereas much uploading of files to the internet is carried out by amateurs and without the intention of reaping a profit. “All obligations that apply to a professional player also apply to an amateur,” she said. “Is that desirable? On the one hand, you can argue that user-created content can have an effect on and even compete with professional content. On the other hand, individuals who are amateur lack the resources to hire lawyers and are often not trained to assess the socio-economic effects of their activities.”

Florence Le Borgne from IDATE, a French institute on audiovisual and telecommunications policy, said that a survey by her institute of YouTube users indicated that a majority of them are mainly interested in what they regarded as “illegal content.”
“They are looking for TV shows,” she added. “They are not really looking for the birthday party of my neighbour.”

But Google representative Luc Delany refuted allegations that YouTube is flouting the law. Whenever it is notified that video clips on the service are subject to copyright, Google takes one of three courses of action, he said.. The first option would be to delete the material. The second would be to monitor its use; this can prove beneficial, he contended, to film-makers who could decide if it would be worthwhile releasing a movie in a particular country based on whether people there are viewing promotional trailers for it on the internet. And the third would be to offer financial recompense to the rights-holder by giving it some of the money gained from online advertising.

A separate survey of 13 EU countries published by the media communications agency Universal McCann in March this year reported that over 70 million people in these countries have uploaded photographs or videos onto the internet and nearly 26 million have written blogs. But there were wide variations in these activities. Although the proportion of the population in Britain and the Netherlands that has posted photographs online was 24 percent and 28 percent respectively, the proportion was only around 8 percent in Hungary, Poland and Greece.

Anne Troye, a senior official dealing with information technology in the European Commission, said there is “no particular policy initiative in the making” by her institution on user-created content. But she noted that a ‘green paper’ on copyright issues published by the Commission in July raised the possibility that special exceptions could be provided in this area.

David Cronin may be reached at info@ip-watch.ch.