Note: This a final paper I wrote for my SI 519 Class.
Who was named the Time Magazine Person of the Year in 2006? It was ‘You.’ More specifically it was the millions of anonymous users contributing content to the emerging collaborative platforms of the Web 2.0[1]. Time reasoned their selection with the following: “For seizing the reins of the global media, for founding and framing the new digital democracy, for working for nothing and beating the pros at their own game, Time’s Person of the Year for 2006 is you.”(Grossman, 2006) Though US Copyright Law existed long before the Time Magazine honored this new form of intellectual work, user generated content abides by the same copyright regulations as older, traditional works. This paper will give a broad overview on the relationship between US copyright law and user generated content and explore how copyright reform could help strengthen and protect the today’s participatory internet culture.
User generated content (UGC) is partially, if not wholly, created using tools specific to online environments and/or disseminated using such tools. Two key features of UGC are most user are not owners/employees of the platform and the content generated allows interaction from other users (Hetcher, 2008, p. 864). It is a key feature of Web 2.0[2] platforms, including Facebook, Wikipedia, YouTube, Twitter, who feature UGC in the forms of status updates, photos, user comments, and videos. All social networking platforms traffic in UGC and many traditional websites, like news outlets or ecommerce, utilize UGC to enhance user experience.
UGC refers broadly to all content generated in the participative internet, but Daniel Gervais argues there are three different categories of UGC (Gervais, 2006, p. 857). User authored content; the content being generated is original work created by the user. Examples include family photos, original writings, and personal videos. User copied content; directly copying work generally view as infringement unless user has permission, or it falls under fair use. Examples include sharing unoriginal writings without permission, uploading feature films to personal accounts. User-derived content, a more complicated form whose legal status is debated. Examples include memes, fan fiction, and commentary videos.
There is a misconception that users are not copyright holders of the original content they generate. That sharing your photos, writing, videos on social networking sites instantly forfeits copyright of that content. That is incorrect. None of the popular sites that host UGC require you to transfer copyright of your original work.(Hetcher, 2012, p. 840) Instead users agree to an extensive license to allow the platform to host and distribute the content.[3] For example, Instagram ‘Terms of Use’ describes their license as follows:
We do not claim ownership of your content that you post on or through the Service. Instead, when you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our Service, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content.(Instagram, 2018)
There is variation in the licensing requirements based on the platform, but many require this wide range of use, and none by default extend this license to other users. The platform may offer built-in feature for users to utilize other’s UGC, like the retweet function of Twitter or the share function on Facebook which still attribute content to the original author, but users delivering content without attribution is a violation of copyright laws.
Misconceptions surrounding copyright and UGC can be explained by a few factors. These extensive licenses give platforms a lot of control over UGC, including sub licensing. Platforms like Instagram are fully within their rights to license UGC to third parties on and off the platform(Neild, 2018).[4] If Instagram receives a request to remove copyrighted content shared on the platform without permission, if the copyright owner uploaded the content to Instagram previously thus granting Instagram this license, it is within Instagram licensing agreement to be able to grant a sublicense to the offender and not remove the requested content. If the copyright holder decides to remove their content from Instagram that does not terminate third party sublicense that were made during the licensing period.
The media’s coverage of infringement of UGC also contributes to the confusion. When covering the ‘New Portrait’ exhibit scandal, where artist Richard Prince featured others’ Instagram pictures without their permission(Contrera, 2015), outlets used headlines like ‘How an artist can steal and sell your Instagram photos’ and ‘A reminder that your Instagram photos aren’t really yours: Someone else can sell them for $90,000.’ This reinforced the narrative that users have no control over who uses and profits from their content. Richard Prince’s defense was the Instagram license granted permission to other users to share the content and his work fell under fair use because he modified the captions.[5] Instagram denied their terms of service automatically extend the license to users for use off the platform and Instagram did not grant Prince a sublicense (Pagliery, 2015). Because no users featured in the exhibit sued Prince for infringement, he stood by his fair use defense.
Another factor is regular users do not think of themselves as copyright holders. People often view copyright as a professional issue oppose to a personal one (Hetcher, 2008, p. 864). Even in professional settings individuals rarely get opportunity to hold copyright over their work, especially when a place of employment requires that all work generated by its employees be owned by the employer. Users uploading photos and writing essays about their day at the beach may not feel like work and offer little return on investment. Few users would object to their content on social media being copied for copyright reasons, being more concerned about their privacy being violated than their intellectual property being stolen. Users do not view their social media content as a commodity but personal mementos similar to letters or photo albums.
Unlike its physical counterparts, the average user’s content has a greater potential of reaching a larger audience. As 2019 people spend an average of 2 hours and 20 minutes on social media a day[6]( Salim, 2019), a number that increases year after year. Users are spending time and money on social media similar to how they would on traditional media. People do not go on Facebook to see what advanced tools and applications the Facebook team created; they go on to see what content users create with those tools. Users bond over UGC and create communities of members from across the world. Users can ‘go viral’ for funny photo or anecdotes and potentially reach millions of people.
UGC ability to reach and connect people is utilized by businesses for marketing purposes. The assumption is using UGC cuts marketing costs. While true, utilizing UGC helps businesses connect with users, leading to stronger engagement and more dedicated customers. Whether requesting new content or purchasing a license to old, a new billion-dollar industry of people influencing others with their UGC has developed with companies buying content from these ‘influencers.’ However, there is an issue of businesses using UGC without permission from the original other author.
The process of users finding recourse when their copyright is infringed is limited. If the infringement occurs online users can take advantage of The Digital Millennium Copyright Act (Wichtowski, 2017, p. 255). The DMCA was written with the intention of protecting both the copyright holders and the service providers from users who violate copyright law. Under the DMCA copyright holders or their representatives can request service providers[7] to take down the infringing content after filing a take down notice. Many service providers provide forms to file a DMCA takedown request with them.[8] If the provider does not offer their own DMCA form copyright holders must submit a written request to the service provider. The potential infringer can even appeal the notice if they argue the content is not infringing. Finding recourse if the DMCA request gets ignored or denied or if the infringement occurs offline is more difficult. User would need to bring their case to court. A costly endeavor when considering legal fees and official registration of copyright[9]. There is little precedent for copyright cases involving UGC, making this prospect a risky choice for the copyright holder.
Another issue regarding UGC involves the aforementioned user derived content’s place in internet culture. Steven Jamar (2012) explains the issue as follows:
Popular online social networking sites such as Facebook and YouTube create new challenges to copyright law, particularly through user- generated content that uses or is derived from copyrighted works. The hardware and software that users need to manipulate digitized works are more affordable and easier to use than ever before. As a result, more people can more easily and cheaply copy and distribute works and make derivative works of all types (literary, audio-visual, audio, graphic, etc.) with a broad range of quality, including some of very high quality. (p.3)
A large part of internet culture is built on the derived content Jamar describes. Memes, viral videos, trending topics can all utilize copyrighted materials. As of now, copyright holders accommodate this social networking use by seldomly enforcing their rights to stop it.(Jamar, 2012, p.4) But this precedent is not a guaranteed protection. Recently the Ellen Show issued a copyright takedown of a video critical of her support of George W Bush that imposed pictures from the Iraq War over a monologue of her defending her friendship (Masnick, 2019). There is a debate if the video counted as transformative, but the format of imposing text/photos over a copyrighted video is a common practice in internet culture.
The current US copyright laws are insufficient in addressing today’s issues surrounding copyright protection of original UGC and the need to accommodate derivative content at the heart of internet culture. How can this system be improved? Other governing bodies[10] are trying to bridge the gap between platforms benefiting from UGC with little benefit to the user. US copyright reform should consider a better path to recourse for infringed parties[11]. Reform should also expand on the definition of Fair Use to accommodate the realities of internet culture. Digital rights advocates call for a fair use that involves a ‘wide berth for transformative, creative uses,’(Electronic Frontier Foundation, 2007) still allowing for copyright holders to pursue non-transformative uses of their content online, but protect derivative ‘works used for purposes of comment, criticism, reporting, parody, satire, or scholarship, or as the raw material for other kinds of creative and transformative works. The realities surrounding user generated content questions the adequacy of U.S. copyright laws and its system of enforcement. A more robust system is required to strengthen and protect the today’s participatory internet culture. There are various perspectives on the best way of achieving these reforms, but the end product should protect copyright holders while giving other users more power under fair use. These seemingly contradictory ideas are both necessary to foster an internet that encourages creation and dissemination of knowledge.
[1]Time Magazine(2006) describes Web 2.0 as ‘It’s a tool for bringing together the small contributions of millions of people and making them matter. Silicon Valley consultants call it Web 2.0, as if it were a new version of some old software. But it’s really a revolution.’
[3] In my research I was unable to find a site that requires a copyright transfer of UGC
[4] Not something they do often, especially off of the platform.
[5] Prince probably felt embolden after winning on appeal in Cariou vs. Prince where the court ruled his work from an earlier exhibit fell under the protection of fair use.
[6] For context, that is a similar length to many current blockbuster movies
[7] ‘A service provider can be an internet service provider (e.g., Comcast), website operator (e.g, eBay), search engine (e.g., Google), a web host (e.g., GoDaddy) or other type of online site-operator.’ Copyright alliance
[8] Many offer steps and procedures to determine if this is truly a case of copyright infringement. Encouraging users to reach out to the offender first to see if they will remove the content.
[9] DMCA does not require registration of copyright.
[10] Both Canada and EU have done work to reform copyright laws to better accommodate the digital world. (Clark, 2018)
[11] This appears to be a controversial opinion in many current writings. Some worry creating a more robust protection system for internet content could lead to privacy concerns. A fascinating topic I do not have time for in this paper.
At Will 