Copyright Platform Accountability

Should User-Generated Content (UGC) be Exempt from Law and Regulation? Should Internet Platforms Bear any Responsibility for UGC they Distribute?

Should user-generated content (UGC) on social media platforms be free from any regulation and the rule of law, simply because it is user-generated? Should social media platforms be given a pass when it comes to any responsibility for the UGC that they distribute? That seems to be the message from those busy attacking Canadian Heritage Minister Steven Guilbeault for proposing legislative amendments to broadcasting regulation (Bill C-10), and for promising future legislation that will require the platforms to control “online harms”, another form of UGC. Bill C-10 (in its current form) would subject the platforms that host UGC (Youtube–owned by Google–being the prime example) to some regulation with respect to that content. The “online harms” legislation has yet to be introduced although Guilbeault has made clear it is coming this spring.  (Online harms refers to child sexual exploitation, hate speech, revenge porn and incitement to violence.) That Bill’s exact provisions remain to be determined.

Bill C-10

With respect to Bill C-10, the issue is whether the online platforms will be considered “broadcasters” when disseminating video content posted by users. If so, and if Guilbeault’s proposed legislation is enacted, that content would be subject to “discoverability” criteria established by Canada’s broadcast and telecommunications regulator, the CRTC (“the Commission”) to ensure that Canadian content is promoted. The legislation has run into a buzz-saw of opposition from various quarters and has quickly become politicized. Guilbeault has been accused of wanting to “censor” the internet.

Strangely, considering the focus of the criticism, the primary objective of the Bill is not to regulate user generated content. Rather, it is to bring online streaming services under the purview of the broadcasting regulator to ensure that Canadian content is promoted and made “discoverable”, among other obligations.

Should there be a UGC Carve-out?

The original version of the Bill included an explicit carve out for user-generated content in order to reassure consumers that they were not being targetted, but once review by Parliamentary Committee began it was quickly realized this would create a massive loophole that could be exploited by the social media platforms. They could have used the UGC exception to avoid obligations being imposed on other streaming services, such as Spotify for example, with respect to Canadian music. An amendment was therefore proposed dropping the explicit exclusion for UGC. This prompted critics to charge the government with interfering with free speech and dictating what Canadians can post on social media. This is total hyperbole and the critics from the main opposition party, the Conservatives, are surely aware of this, but politics is politics.

Intense Criticism

It has not helped that Guilbeault has struggled to explain clearly the intent of the legislation, which is targetted at the platforms, not consumers. Some of the criticisms have come close to becoming a personal vendetta, with Michael Geist of the University of Ottawa leading the charge, accusing Guilbeault of giving “disastrous” interviews that should lead to him being fired. Geist has been on a campaign for weeks to discredit the legislation, Guilbeault, and the government’s agenda to confront the web giants, publishing almost daily attacks on his blog. Geist is particularly unhappy that Guilbeault and the Heritage Ministry have been given the file to run with rather than the usually more Silicon Valley-friendly Ministry of Innovation, Science and Economic Development. In other words, the “culture” mavens seem have priority over the techies who guard “industry” interests.

What’s the Real Issue?

With regard to the policy intent of Bill C-10 (Amendments to the Broadcast Act), one can legitimately question whether Canadian content “discoverability” requirements are needed, or indeed whether streaming services should be treated as broadcasters. Even the whole question of Canadian content quotas can be debated. I, for one, remain to be convinced that enhanced discoverability requirements are needed to get Canadians to watch more Canadian content (Cancon). And then there is the question as to what constitutes Cancon, but that is another entire topic. But just to give one example of the arcane rules that govern Canadian content, a project produced by Netflix with a Canadian story, Canadian actors and Canadian writers will not qualify as Cancon if it is fully financed by Netflix. Why? Somehow, the money is not “Canadian” enough. Go figure. Since establishing its Canadian operation in 2017, Netflix has spent over $2.5 billion on production in Canada but much of that does not count toward content quotas. (An earlier blog I wrote on this topic, “Netflix in Canada: Let No Good Deed Go Unpunished explains how difficult it is for companies like Netflix to qualify.)

In my view, the answer to getting Canadians to watch more Cancon is to produce more good quality Canadian content. (Schitt’s Creek is a prime example of successful Canadian programming that does not need to be “discovered”). However, putting the Cancon question aside for a moment,the issue is now whether a level playing field will be established for all streaming services. If discoverability requirements are going to be applied to streaming services, then social media platforms should not be given a pass simply because they host user generated content.

Is UGC Sacrosanct?

There is nothing sacrosanct about UGC that puts it into a separate universe. For the most part, it should be left alone as it forms part of the free expression of society, but where and when it crosses the line of the law, or falls into an area subject to regulation, there is no reason why UGC should be treated differently from any other content. The killer of 51 people at two mosques in Christchurch , New Zealand, live-streamed the shootings on Facebook. That live-stream was 100% UGC. Some critics claim that subjecting UGC appearing on Youtube to CRTC oversight will impair free speech rights and would be contrary to the Canadian Charter of Rights and Freedoms. This, despite an opinion from the Department of Justice, backed up by testimony from the Minister of Justice (himself a distinguished legal scholar), explicitly dismissing claims that any provisions of the Bill would violate Charter freedoms.

Why Include Youtube?

Why extend the content discoverability requirements to Youtube? Because Youtube is a major distributor of music and video, and in fact acts as an online broadcaster—although the content is user-generated. (There are more than 35 million Youtube channels, most of them with an admittedly small following). According to a Ryerson University study (quoted in the Toronto Star), 160,000 Canadians post content on Youtube, with 40,000 of them earning revenue. Would subjecting this “broadcast content” to discoverability requirements be an impairment of free speech rights? Why would it be? Nothing is censored, nothing is “taken down” or “buried”. Users are free to post what they wish. Indeed, that is part of the problem. Sometimes what they post is illegal, infringing or libellous.

The fact that content is user-generated is no reason to exempt it from regulation deemed to be in the public interest (although there may be different viewpoints as to what constitutes the public interest).  Where it falls within regulation, user-generated content—especially when done for commercial purposes such as ad-supported Youtube channels—should not have an unfair advantage over other forms of content.

Net Neutrality

Another argument against applying any regulation to the distribution of UGC is that CRTC oversight will undermine net neutrality. Vocal C-10 critic Michael Geist claims that Guilbeault’s bill shows the Canadian government has abandoned its support for this principle. This is an old canard regularly trotted out by opponents of any internet regulation. By Geist’s own admission, net neutrality requires ISPs to avoid practices that would unfairly give preference to certain content over others through discriminatory charges. In particular they are required to not favour content in which they have a financial interest over other content that may compete with it. Net neutrality is founded in the common carrier concept that emerged from the telegraph era when companies like Western Union prevented competing news services from using their telegraph system to file competing news stories. The principle is the same today. But net neutrality has never meant that there should be no regulation of internet content. The best example of the need for regulation is the question of “online harms”, the next Guilbeault shoe set to drop.

Expected “Online Harms” Legislation

Right now, Bill C-10 is the target of the critics, but I am sure that when the “online harms” legislation is tabled (shortly), we will hear the same complaints about how it interferes with freedom of expression on the internet. This raises yet again the fundamental question as to whether government has any role in regulating what appears on social media. The answer, surely, must be yes—subject to the normal protections regarding freedom of expression. In Canada this is done through the Charter of Rights and Freedoms. Section 2(b) of the Charter protects, “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. But that is subject to limitations. The Canadian government’s explanation of the Charter says, right up front with respect to the freedoms that it guarantees, “The rights and freedoms in the Charter are not absolute. They can be limited to protect other rights or important national values. For example, freedom of expression may be limited by laws against hate propaganda or child pornography.”

That is apparently what the online harms legislation will do. Michael Geist doesn’t like that legislation either. In an opinion piece in Macleans (once described as Canada’s national news magazine), Dr. Geist attacked the online harms legislation because it will likely include a mechanism to block illegal content hosted by websites outside Canada that are beyond the reach of Canadian law. According to him, this would “dispense with net neutrality”. If net neutrality means protecting the rights of offshore websites to disseminate hate speech, material that sexually exploits children and incites violence and terrorism, most of it UGC by the way, then net neutrality is not worth protecting. But of course, this has nothing to do with the meaning of net neutrality. Net neutrality as a huge umbrella protecting everything on the internet exists only in the minds of the cyber-libertarian claque.

An “Internet Firewall”?

Disabling access by consumers to illegal content hosted offshore is not some Orwellian plot. It is a reasonable application of the law to rogue sites that thumb their nose at national legislation because they are hosted somewhere in cyberspace. Opponents of any form of site-blocking claim that it creates an “internet firewall”, with obvious comparisons to the “Great Firewall of China”. What China is doing to limit access to online content by Chinese citizens parallels other censorship and behaviour control measures instituted by the authorities in China. But China is China. Canada is Canada. To equate targetted blocking of content that is illegal under the Canadian criminal code with the kind of thought control techniques exercised by the Communist Party in China is fanciful. Another potential use for targetted site-blocking, subject to all the requirements of due process—application, hearing, appeal, etc.—is to disable access by consumers to offshore sites hosting illegal, pirated, copyright infringing content. See my recent blog “Site-blocking for “Online Harms” is Coming to Canada: Similar Measures to fight Copyright Infringement Should Follow”.

Expeditious Takedown

In the same op-ed, Prof. Geist also objects to the fact that platforms will likely be required to takedown illegal content within 24 hours. This is similar to Australian legislation passed after the Christchurch killings that requires platforms to “expeditiously” take down “abhorrent violent material” when notified to do so. Geist claims this approach substitutes speed for due process. But sometimes speed is precisely what is needed when the harm is so egregious that action must be taken immediately. One would expect the platforms to exercise their own oversight in such cases, but experience has shown that they often will not act unless required to do so.

Holding Big Tech Accountable

At the end of the day, the key question comes down to whether UGC has some special place as a form of speech that cannot be regulated or subjected to lawful oversight, and to what extent the social media platforms that host and thrive on UGC should bear any responsibility for the content they allow to be posted. For all too long, the platforms have hidden behind the pretence that they are just neutral “bulletin boards” with no responsibility to vet what goes up on those boards. They employ terms such as “net neutrality” and “freedom of speech” to duck any responsibility for offensive and illegal content that they are happy to monetize—and on occasion even encourage. Some of this is copyright infringing content, which is why I am writing about UGC on this copyright blog. By sprinkling magic dust on UGC to make it “different”, the big tech platforms have tried to duck their share of responsibility for allowing and exploiting infringing content, shifting all the burden to the users which they enable.

One thing is certain. Change is coming. Platforms are being increasingly held to account for the content they carry, in Australia, the EU and in Canada.  In the US, serious reconsideration of Section 230 of the 1996 Consumer Decency Act, the “get out of jail free” card that the internet platforms have used for years to avoid any responsibility for online content that they host and distribute, is coming under serious scrutiny. Those opposed to any change in the status quo are fighting a furious rear-guard action, invoking hallowed and sacrosanct concepts such as free expression (the First Amendment in the US, the Charter in Canada), net neutrality, lack of due process, and so on, all in a vain attempt to avoid any restrictions on big tech and to hold it more accountable.

Conclusion: UGC Must Comply with Laws and Regulation

I cannot predict at this stage what the final shape of Bill C-10 will look like, or whether Steven Guilbeault will be able to withstand the furious attacks by opponents seeking to strip user-generated content (UGC) out of the legislation. As for the online harms legislation, we will have to wait to see how it deals with harmful and illegal content on the internet, much of it generated by users. If it requires platforms to expeditiously take down harmful material, that will be a good thing. If it provides a mechanism to prevent consumers from accessing purveyors of illegal content who avoid Canadian law by locating their servers offshore, that would also be a good outcome.

With regard to C-10, although you can question the necessity for bringing streaming services under the broadcasting regulator and applying Canadian content and discoverability requirements to them, if that is the policy direction, then there is no reason to give Youtube a pass simply because it commercializes user-generated content. Laws and regulation must apply to UGC, subject to constitutional limitations, just as they do to other forms of content. To act otherwise creates a massive loophole that undermines policy delivery, is unfair to other content services, and tilts the playing field by impeding fair market competition.

This article was originally published in Hugh Stephens Blog.


Even After Passage, EFF Keeps Spinning CASE Act Fictions

If the staff of the Electronic Frontier Foundation (EFF) ever decide to quit their day jobs protecting Big Tech interests, we’d wager that they would have a bright future in fiction writing.

From creating alternate universes to building men out of straw, the Big Tech advocacy group seems to exist in a world quite unlike the one the rest of us inhabit.

As part of their ongoing tour outside of reality, their latest “Copyright for Internet Creators Town Hall” event left us, once again, scratching our heads.

Ostensibly a summary of recent events regarding copyright law, the virtual session quickly turned into an anti-copyright propaganda session, with the CASE (Copyright Alternative in Small-Claims Enforcement) Act as the panel’s primary punching bag.

But metaphorical punches land harder when they’re true, and EFF’s flimsy jabs were anything but.

To review, the CASE Act creates a tribunal for small-scale infringement claims so creative individuals and small businesses don’t have to go through expensive litigation in federal court to protect themselves against piracy. Damages are capped at $30,000, and participation is entirely voluntary.

First introduced in the House in 2016, the CASE Act was the subject of congressional discussion as far back as 2005, and was finally being signed into law in December 2020. Kicking things off in signature bad faith, the EFF began its town hall by pretending this 15-year legislative journey never happened. EFF Associate Director of Policy and Activism Katharine Trendacosta claimed that the CASE Act passed in 2020 “despite not having hearings” and “just suddenly appeared and became law.”

Here are some facts: the CASE Act had 1) not only been kicked around for over a decade and a half prior to passage but 2) was the recipient of a rigorous raft of expert analysis executed by the Copyright Office, including a two-year study, three rounds of public comments, a number of hearings across the country, and a report to Congress complete with proposed statutory language. Oh, and 3) there were additional hearings and bill introductions over the course of three Congresses; 4) a detailed markup of the legislation by the House Judiciary Committee; 5) a review of the legislation by the Senate Judiciary Committee; 6) a nearly unanimous 410-6 vote to pass the bill on the House floor all the way back in October of 2019; and 7) the EFF itself was aware enough of the legislation to have previously launched its own disingenuous critiques.

Wow, the damn thing just appeared out of nowhere, right, Katharine? Only if you haven’t been paying attention since George W. Bush was in his second term.

So after declaring their selective amnesia, the EFFers doubled down, replaying their anti-CASE Act greatest hits.

For instance, the panel raised the terrifying specter of “copyright trolls” abusing the system… ignoring that the CASE Act empowers the hearing tribunal to 1) reject any claim it wants to on the merits, 2) ban bad actors who repeatedly make improper claims for up to a year and dismiss all pending cases from said bad actors, and 3) award attorneys’ fees to the defendant for up to $5,000. What’s more, the opt-out power of the defendant is a built-in deterrent for trolls, because it potentially costs trolls money. Even though CASE Act claims are significantly cheaper to file than court claims, there are still filing fees involved. If a defendant opts out of a false claim from a troll, guess who loses their filing fee? That’s right, it’s that thing that looks like a monster and lives under a bridge.

But the panel didn’t stop there. EFF Staff Attorney Cara Gagliano also framed the (completely voluntary) tribunal system as a threat to Americans’ “right to a jury,” glossing over the fact that – once more with feeling, please – an alleged infringer has the complete right to opt out of CASE Act claims and divert the disputes to the ordinary federal court process if they so choose.

The whole point of the CASE Act, as the name suggests (“Copyright Alternative”), is to give both claimants and defendants an alternative to cumbersome and prohibitively expensive court litigation. Sometimes people just don’t want to deal with a jury, on either side, especially when we are talking about potential damages of less than $30,000.

The EFF’s deceitful, willfully ignorant attacks reached their nadir when Trendacosta said that those who do choose to opt out of copyright claims under the CASE Act, must repeat the opt-out process “every single time you get [a claim notice].” Her complaint, in essence, was that accused pirates cannot file a blanket opt-out form that excuses them from all future claims against them – looks like she wants the equivalent of a Presidential pardon within the small-claims copyright system.

Trendacosta failed to see the irony when, not long after, her fellow panelists pounced on proposed legislation to turn today’s feckless notice-and-take-down system into a notice-and-stay-down system, claiming such an arrangement would result in an avalanche of erroneous content removals.

So EFF has no problem with a legal system that forces copyright owners to file a new, cumbersome takedown form “every single time” they wish to “opt out” of being pirated… but we’re expected to light a candle for the poor pirates who, under the CASE Act, might have to file a response to each specific alleged act of infringement that might go to small claims court?

It’s sad, but true, that internet platforms have no incentive to keep pirated works permanently removed. That results in an endless game of Whac-A-Mole as creatives waste precious time and resources hunting down infringements and having them removed. In the fictious world EFF works so diligently to portray, the danger to society of red-herring villains such as copyright trolls outweighs the benefit of sound copyright legislation designed to give creatives a fighting chance at protecting their works within this online space where everything is stacked against them. To the EFF, a crime that costs the U.S. economy at least $29.2 billion and between 230,000 and 560,000 jobs each year is simply not worth fighting with stronger copyright laws.

Why does EFF keep barking into this void? The CASE Act has been signed into law, after all, and with nearly unanimous support from Congress. As early as December 27, 2021, the Copyright Claims Board will begin operations, giving creatives a new and affordable venue to uphold their copyrights.

Will EFF recognize that this horse they keep beating has, in fact, expired? Well, as Yogi Berra once said, it ain’t over till it’s over. Maybe the EFF thinks they have some kind of constitutional basis to challenge the law. Maybe they think they can rabble-rouse by their usual tactic of spreading misplaced fear and paranoia about any new policy that helps copyright owners protect their works online.

We’ll let the facts speak for themselves. We urge readers to do their own research. Read the actual CASE Act as well as supplemental pieces from actual copyright experts (and not the viewpoints of people who actively loathe copyright). And, as we near its official operational date, we suggest that you tune out the coming onslaught of misinformation from groups like the EFF.

Armed with information, we can stave off dishonest attacks on a law designed to help the creative industry’s most vulnerable members. The EFF may keep writing its alternative fiction about the CASE Act, but we hope we can close the book on this one soon and let the new system work.

This article was originally published in CreativeFuture

Industry Media OTT Piracy

Cinemas, Content & COVID

Vivek Krishnani, an industry veteran, has spearheaded the development and release of several blockbusters in Hindi  as well as other regional languages. In conversation with Creative First, he shares unique insights and personal anecdotes on the state of affairs in the M&E industry, including his thoughts on what it will take to revive growth in the theatrical segment.

Talking about the M&E industry’s 5 year trajectory into the future, Vivek points out that while the pandemic has continued to be a challenging time, it has also forced the M&E industry to introspect on how a business can improvise on a new growth strategy. He highlights that though the sector fell 24% ($81.9 billion) ] in 2020,  since the process of unlocking the country began, a marked improvement in revenues was observed.

When it comes to the theatrical space, Vivek pointed to markets like China and Japan where, once Covid-19 was brought under control, people came back to theatres, revenues were seen to go off the roof. He believes that the Indian theatrical market will have the same experience.

Speaking of the strategic changes that have come about in the M&E industry post 2020, Vivek said that at the crux of it, the texture of content is changing. Studios are now engaged in solving the question of what content will appeal to what kind of people and on what platform. There is a huge strategic shift being observed in the way content creators are looking at providing entertainment; understanding consumers has become the most important aspect of content creation. As a studio, we are creating films for theatres, but at the same time, we are also looking at creating content for OTT platforms.”

Vivek pointed that the number of subscribers have gone up from 10-15 million to 28 million on SVOD platforms, which means that technology is going to play a major role in the M&E industry going forward.

When it comes to technologies that are most likely to bring the next wave of change in the M&E industry, in Vivek’s opinion, engaging and interactive content like Black Mirror – Bandersnatch is going to be a game changer. VR, a technology that can enable theatres to have a visual spectacle, or provide an immersive experience to audiences will see a huge amount of support coming their way. AI and machine learning too, will come to play a larger role in the M&E industry. To sum up, technology that will make things easier for people who are producing or consuming is something that will have a huge growth. It is then only natural for studios to invest in these technologies – after all if the audience wants a great experience, it only makes sense to give it to them.



On the subject of tax incentives for producers, Vivek said that the single window clearance and state level incentives are very beneficial to productions. It boosts allied businesses in a state, and the tax incentive is a good draw for producers to explore new locations. He believes that it is a huge opportunity for filmmakers to capture the visual splendour, unexplored Indian landscapes have to offer and coupled with tax incentives, it is an icing on the cake.

Imagining what a federal incentive in India should look like, Vivek suggested taking a look at what the rest of the world is doing and then adopting what works for a country like India. He added that a cash incentive would be lucrative but whether it is practical when compared to a tax concession is something that remains to be seen.

With regards to screen density, he said that India is definitely an under-screened market – it has 7 screens per million people, while China has 65 screens per million and the US has 110 per million. He added that the market potential still allows for a bullish take on the growth of cinemas in India. According to him, the focus should be building cinema screens in Tier 2 and Tier 3 cities. He also expressed hope in the promising initiatives by the government to start cinema viewing experiences at bus stops and railway stations.

Touching on the subject of piracy, he remarked that box office revenue would be 5 times more of what it is now if it wasn’t for the threat of piracy. While studios like Sony have been watermarking digital prints and working with industry bodies like Motion Picture Association  (MPA) to create outreach and awareness activities, what will bring about real change is the awareness in the consumer’s mind that piracy is akin to stealing, he added.

In conclusion, Vivek said that studios and exhibitors need to utilise content and technology to create experiential opportunities for theatregoers – which is exciting considering the M&E industry is the best place for new, unique and innovative ideas.


Platform Accountability

Fair Use ‘Abuse’ is No Excuse for YouTube to Hold Back Piracy Tools

Big Tech companies have a knack for wielding the “free speech” argument as a shield to avoid tackling the systemic criminal behavior on their platforms. This tendency bleeds into the realms of copyright disputes and content protection, where Big Tech’s deep-pocketed, anti-copyright advocacy network often vilifies efforts to fight piracy online as dire threats to our cherished internet liberties.

This tactic, already deeply misleading, reaches new levels of bad faith when these groups turn to “fair use,” which they repeatedly weaponize to make baseless attacks on automated content filtering solutions such as YouTube’s Content ID and Content Verification Program.

At a Senate DMCA hearing in June of last year, for instance, Public Knowledge’s Meredith Rose argued that automated filtering systems chill free speech “all the time” by giving users too much power to take down works that qualify as fair use, such as commentary or parody. And in December, the EFF – a notorious Big Tech bulldog – echoed that claim even more forcefully, arguing that one of YouTube’s automated tools “discourages fair use and dictates what we see online.”

Perhaps the cruelest irony facing creatives who have had their work pirated on YouTube and are left with no recourse is that YouTube has the tools to find and fight infringement. But YouTube just won’t give them to most individuals. And the purported concerns over “fair use” are a big reason why.

The Suite

In fact, YouTube has an entire suite of content protection tools, including Content ID and Content Verification Program (CVP), which automatically detect unauthorized works on the platform and give rightsholders options to remove or monetize them. CVP is less sophisticated than Content ID but provides users the ability to quickly root out unlicensed uploads of their works and file takedown notices in large batches.

Then there is Copyright Match, which uses the same matching technology as Content ID but is only useful for finding full uploads of the user’s original videos – and YouTube will only allow use of Copyright Match if the creatives have previously uploaded a full version of their copyrighted content to the platform themselves.

Finally, there is YouTube’s “default” copyright protection “tool,” a cumbersome Copyright Takedown Webform that must be filled out anew for each and every new alleged copyright violation. When the same pirated work pops up elsewhere on YouTube, even after an earlier version was taken down, the form must be filled out all over again. It’s like Groundhog Day.

Alas, most creatives are relegated to using the webform since YouTube is notoriously stingy about who receives access to its higher-level offerings. In the case of Content ID – by far the most powerful tool of them all – this withholding makes sense, as its complicated dashboard is designed for large-scale copyright owners (such as movie studios and music labels) who may have to manage thousands of titles across hundreds of international territories

But the very effective Content Verification Program seems tailor-made for creatives with fewer copyrights and less complicated management scenarios. CVP has been proven to be a boon to creatives who own their copyrighted work outright and simply want an automated tool for finding – and easily removing – their content from the platform. Expanding access to CVP could be enormously beneficial to thousands of creative individuals and small businesses with smaller but frequently pirated catalogues.

Unfortunately, very few creatives are granted access to CVP, and YouTube provides no set guidelines explaining who gets it and who doesn’t – other than a hazy suggestion that “If you often need to remove content and have previously submitted many valid takedown requests, you may be eligible for our Content Verification Program.”

But even when creatives meet both these vague criteria, they are routinely denied not only CVP but even the significantly less effective Copyright Match. That leaves them the (non-)choice of hunting down and removing every last unauthorized upload on their own, one Copyright Takedown Webform submission at a time, and doing it over and over and over.

The Myth of Fair Use Abuse

Why does YouTube not offer the appropriate existing content protection tools to more creatives? Shouldn’t every rightsholder have the chance to quickly and easily protect their own work from being exploited by others on a platform worth many billions of dollars?

EFF would like you to think this is the reason: Giving copyright owners free access to reasonable content protection tools would deprive users of their free speech rights because copyright owners would file copyright claims en masse on content that actually qualifies as fair use.

Rebecca Tushnet, an outspoken copyright critic from Harvard, provided a particularly succinct summary of this deceptive viewpoint in her written testimony for a February 2020 DMCA Senate hearing: “Automated systems [like Content ID] don’t respect fair use and other limits on copyright,” she wrote, “harming the creators copyright is supposed to serve.”

So that’s Orwellian reasoning. The Tushnet contingent believes that the most effective tools we have for stopping the theft of creative works on the world’s biggest video platform are actually harming creatives. And their reasoning, in part, involves a purported plague of fair use abuse.

But there is no plague. And you don’t have to take our word for it, because Google (YouTube’s parent company) agrees. At yet another DMCA hearing, in December 2020, Katherine Oyama, Google’s Global Head of IP Policy, testified that “less than 1% of all Content ID claims made in the first half of 2020 were disputed.” And within that tiny amount, according to Google’s own YouTube data, “60% resolve in favor of the uploader.” Do the math and that leaves 40% of this dispute total resolving in outcomes that do not favor uploaders, some of which, yes, surely involve the denial of those uploaders’ fair use claims.

To summarize: Only one percent of all Content ID claims are disputed to begin with, and within that one percent, only 40% of those claims, fair use or otherwise, are ruled legitimate, i.e. favor the disputer.

To simplify: That’s four-tenths of one percent of all infringement claims that could potentially be wrongful fair use takedowns.

Doesn’t sound like Content ID is suppressing our internet freedoms “all the time”… does it?

One Big Problem

Of course, even a broken clock is right twice a day. The anti-copyright cohort is correct that there are instances where the use of automated copyright protection services lead to some legitimate fair uses being wrongly taken down. But, as demonstrated above, the volume of these take-downs is microscopic in relation to the overwhelming amount of piracy that could be, and already is, reversed by tools like Content ID and the Content Verification Program.

Furthermore, in those rare instances where a user can legitimately contest fair use in response to a takedown, YouTube has an appeals system that works to restore false or invalid claims as quickly as possible. Yes, even in the tiny fraction of a percent of cases where a takedown claim is invalid, the perceived threat can be mitigated by YouTube’s built-in resolution system.

So it’s time to get to the truth – the risk of inadvertent takedowns of content using YouTube’s content filtering tools where this a legitimate fair use claim is miniscule. And the harms to creatives that are prevented by the use of filtering tools are vastly larger than the inconveniences imposed on a very small number of creatives by the use of these tools. In short, fair use abuse is no excuse to bar quality content filtering tools, and access to these tools should be in the hands of more creatives.

Industry World IP Day 2020

“Fall Seven Times and Stand Up Eight”​

As we commemorate World Intellectual Property Day, with a special focus this year on the importance of IP protection for small and medium-sized enterprises (SMEs), I’d like you to imagine you’re watching a movie.

It opens on two such businesses. The first, BackFocus Productions in Little Rock, Arkansas, was created in 2011. It’s a video production company, run by a husband-and-wife team, that makes local and national commercials. The second company is Honest Foods Catering in Chicago. Another small company, created in 1997, it has five employees, and its clients include film and television productions in the area.

Now imagine the camera rising ever higher until – with enhanced graphics – we find ourselves with a bird’s-eye view of the United States. All 50 of those states are covered in dots, over 90,000 in all. Each one represents a business – 87 percent of which are small businesses employing fewer than 10 people – that make up an industry that supports 2 million jobs in all 50 states.

These are high-quality jobs, with wages for direct industry jobs 53 percent higher than the national average. The industry contributes more than $240 billion annually to America’s GDP.

The film, television, and streaming industry is also highly competitive around the world, with $17.3 billion in exports, and $9.6 billion in trade surplus, generating a positive balance of trade in every major market in the world.

Yet for all this collective economic power, these SMEs who constitute most of our industry could not operate without the IP protections that create the market for film and television content. Piracy, particularly digital piracy, threatens their very existence every day.



For all of my professional career, working in the media sector for more than 20 years, as a former U.S. Ambassador to France, and former Assistant Secretary of State for Economic and Business Affairs, and now as Chairman and CEO of the Motion Picture Association, I have appreciated the economic significance of SMEs. They are the engines of every economy – not just in the United States but around the world. The numbers confirm this. According to the U.S. Small Business Administration, they are responsible for two out of every three new jobs created in the country. And throughout Europe, in the film and audiovisual sector, they are the economy. In 2018, out of approximately 128,000 businesses, 99.8 percent of them were SMEs.

From Boston to Berlin to Bangalore, SMEs operate in very risky and challenging environments. What enables the successful ones to survive are creativity, innovation, and tenacity. I bet that every one of them would embrace the Japanese proverb: “Fall seven times and stand up eight.”

Without IP protections, their already slim chances of success are reduced to virtually nothing. The prospect of having their ideas, or their works, products, or services stolen, and their income enjoyed by someone else, outweighs their willingness and ability to take on risk, and to make the investments and sacrifices and commitments needed.

Given the economic ravages of the pandemic, the need to protect SMEs couldn’t be more critical. The stakes are enormous for my industry and all creative industries that depend on copyright protection, including books, music, motion pictures, radio and TV broadcasting, computer software, newspapers, video games, and periodicals and journals.

The overall contribution of these industries to the U.S. economy alone is $1.5 trillion in value. And a 2019 study conducted by the EU Intellectual Property Office and the European Patent Office found that IPR-intensive industries have been on a steady increase, generating 29.2% of all jobs in the EU between 2014 and 2016, for almost 45% of EU GDP in the same period.

The dangers that piracy poses to SMEs, in large part, motivated the Motion Picture Association to work with partners to create the Alliance for Creativity and Entertainment (ACE) in 2017. As the world’s leading coalition dedicated to reducing piracy and protecting the legal marketplace for creative content, ACE works around the clock with governments and law enforcement agencies to promote and support the creativity and innovation that is absolutely essential to core copyright industries globally.

We also recently supported the USMCA [U.S.-Mexico-Canada] trade agreement, which builds on NAFTA and makes important interim steps toward modernizing copyright protections and enforcement for the digital age. By doing so, USMCA takes us much closer to the kind of robust protection we need in a modern trade treaty, putting our industry in a more competitive position.

Protecting our industry from piracy is not a war that is easily won. But it must be fought – not just for creators, but to foster the confidence and ease of mind that consumers demand, and markets rely on.

When you put the magic that we have been creating on film and TV screens for audiences for generations together with our economic contributions to the global economy, it does not overstate the case to say we are one of the world’s most precious assets. With everyone’s support, including the protections they need, BackFocus Productions, Honest Foods, and everyone working in this resiliently creative industry can enjoy profitable ‘sequels’ into the foreseeable future.

Copyright Piracy

Streaming pirates and broadcasters have a lot in common – with one big difference

Contrary to the popular saying, crime does sometimes pay. Based on our own research, the top pirate web domains – the ones people turn to when they don’t want to pay to watch the football, the boxing, the new Hollywood film – earn around $7 million in ad revenue annually.

So there’s money in crime, but that doesn’t mean crime is necessarily easy. Just like legitimate operators, pirates have a business to run, and it’s clear they are committed to their work. They hook their sites up to programmatic ad channels to generate revenue. They promote their product through search and social media – building a brand, acquiring an audience. Some even sell subscriptions.

Then there is the more technical side: they develop apps, create mirror sites to evade blocking orders, and constantly obscure and relaunch their activities to stay ahead of the authorities.

In other words, give or take a few wrong-side-of-the-law contingencies, pirates have a lot of the same operational challenges as legal broadcasters, and many of the same tools at their disposal to market and monetise their channels. You might almost admire their style.

But the glaring difference between the legitimate broadcasters and the illegal streaming companies is that the outlaws don’t pay a penny for the content they distribute. That’s a big item off the balance sheet, and it’s the reason why they thrive, and why their success does so much harm. When you are stealing and re-selling someone else’s product, fees, royalties and regulation don’t mean a great deal to you.

Given the popularity of illegal streaming, it’s tempting to conclude that those things don’t mean a great deal to many viewers either. What could we possibly steal from the billionaire football clubs, the multi-millionaire promoters and the broadcasting conglomerates that they couldn’t afford to lose?

But the fact is, IP doesn’t only benefit the rich. It bankrolls the creation of all sport, all art, and pays both big salaries and small ones. The criminal operators who siphon off their own ill-gotten share of the proceeds may look like Robin Hood figures, liberating content from the hands of those who would charge for it, but they owe their entire existence to the legitimate channels whose content they are hijacking.

It’s World Intellectual Property Day today (April 26), shining an annual light on the role intellectual property plays in the global economy and the work it does in protecting the interests of customers, culture, SMEs – even the environment and indigenous communities. If nothing else, it offers a reminder of how broad the benefits of IP actually are.

Perhaps it’s too much to expect a fan streaming a Champions League match to think very hard about the economy such activities disrupt at all levels. But like the recent European Super League proposal so many fans hated, this kind of IP infringement reduces the amount of money that trickles down through sport to smaller teams and grass-roots initiatives. And like the football agents of whom so many disapprove, it drains enormous sums from the game without conspicuously putting anything in.

And that’s just football. The unfortunate fact is, all industries show a similar pattern of revenue disruption when pirates get their claws in.

As a company that devotes huge time and expertise to tracking and monitoring the ever-shifting sprawl of copyright-infringing content on the internet, we get to see it for what it is: a systematic criminal enterprise that leeches vast, quantifiable sums from IP owners all over the world, and the industries, wages and ongoing innovations that depend on them. The fact that these pirates are organised, even professional, shouldn’t obscure their negative impact.

So, on behalf of rights owners, authorities and right-thinking companies in the ad chain, we continue to work to attack the basis of their business, de-indexing pirates from search engines, demonetising them by cutting off their ad supply. And because we survey the entire landscape, we can do much of this in real time, cutting the revenue lines and marketing channels on which they depend, often within hours of detecting illegal activity.

Crime pays, but it does so with money that, in the proper hands, could have done a lot of good. We might never entirely stop it, but we can all stop supporting it, and some of us will keep on doing our best to fight it.

Platform Accountability

YouTube Bares its Anti-Creative Roots

In case you had any doubt how YouTube feels about artists, the company made its views clear in November with a sneaky alteration to how it monetizes videos. If you were among those who always thought that YouTube feels nothing for artists, this news proved you were 100% correct!

“Starting today we’ll begin slowly rolling out ads on a limited number of videos from channels not in [the YouTube Partner Program],” YouTube announced in a blog post summarizing a recent raft of changes to its terms of service. “This means as a creator that’s not in YPP, you may see ads on some of your videos.”

Here is what this means: A creator who is interested in sharing ad revenue with YouTube must be enrolled in the YouTube Partner Program (YPP). It used to be the case that if you were a creator who wanted to keep your videos free of ads on the site, you could simply not enroll in YPP. Well, not anymore! Now, YouTube has decreed that it can run ads on all videos – however, if “you’re not currently in YPP,” the post continued, “you won’t receive a share of the revenue from these ads”.

Unsurprisingly, this brazen cash grab sent shockwaves through the creative community. One YouTuber described the change as the greediest move he’d ever seen, noting that “[i]f you’re a small channel, struggling to grow and haven’t yet gotten monetization, YouTube will run ads now and take 100% of the profit from your work.”

So, why not just join the YouTube Partner Program and start collecting that sweet, sweet ad cash? Easier said than done.

To qualify for YPP, your videos must have attracted 4,000 hours of viewing and 1,000 subscribers in the prior 12 months. YouTube bragged recently that the number of members who reached this elite threshold doubled in 2020 – but they didn’t actually disclose what that number is. That’s probably because all evidence points to it being pretty tiny.

Last year, the social media data firm Social Blade counted more than 37 million total YouTube channels with at least five subscribers or more. Twenty million of them had between 10 and 100 subscribers, and 12 million had between 100 and 1,000 subscribers – which means that, in the best-case scenario, tens of millions of YouTube channels fail to meet the 1,000-subscriber threshold required to enroll in YPP. That’s tens of millions of channels whom YouTube has now given itself blanket permission to profit from without paying them a penny.

Of course, YouTube is a private company. It has every right to monetize whatever lawful content it wants to on its platform. But YouTube also likes to portray itself as a creator-friendly platform that pays content creators fairly (never mind the fact that it pays between just three-tenths and one-half of one cent per video view and that some of its most popular channels may still be generating less than $17,000 per year) – and this move is anything but that. On paper, YouTube has less incentive than ever to bring more channels into its revenue-sharing partner program. Why accept more members into YPP when it can now monetize any video it wants to, from the tens of millions of channels outside of the program, and keep 100% of the money?

But the ramifications this monetization change could have for creator livelihoods is only the beginning of why it is troubling.

YPP exists in the first place because YouTube had a big problem. It was monetizing horrible videos involving hate speech, extremism, violence, and other harms. It was not only profiting from some of the most toxic content imaginable but pairing some of its most prized advertisers with said content. By YouTube’s own admission, YPP’s stringent eligibility requirements are a way of “strengthening our requirements for monetization so spammers, impersonators, and other bad actors can’t hurt our ecosystem or take advantage of [users], while continuing to reward those who make our platform great.” Noble words that, in retrospect, ring completely hollow. Now that YouTube has codified its ability to monetize any video, whether it’s in the program or not, how is it going to avoid backsliding, running ads against sketchy and dangerous content?

We might know the answer to that question if YouTube offered any transparency whatsoever about this latest decision – but as per its custom, the details of the monetization update are incredibly vague and create many more questions than answers. How is YouTube determining which non-YPP videos get monetized while excluding potentially harmful videos? What is the engine of the moderation process for non-YPP videos? Humans? AI? The update says a “limited number” of non-YPP videos are being monetized – but what is a “limited number” when we’re talking billions of hours of content? Millions of videos being monetized without permission? Tens of millions?

Then again, at least YouTube has provided some kind of warning here. Sure, it is tucked deeply away in a dusty corner of the site’s terms of service – but it is there, clearly signaling to any potential uploader who happens to stumble across it that YouTube may secretly monetize their video and pay them nothing.

Meanwhile, there is a whole other category of creatives who see their works monetized on YouTube all the time without any fair warning: victims of piracy, ranging from filmmakers to musicians to podcast hosts and beyond.

From Content ID to the Content Verification Program, YouTube has the tools to help these creatives find and take down pirated versions of their works. These offerings even give creatives the ability, if they so choose, to share in any revenues generated rather than taking the pirated versions down. But YouTube arbitrarily withholds such tools from most creatives, leaving them to spend endless hours scouring the platform’s ocean of content to find pirated copies of their works, then filling out cumbersome takedown forms to ask for each individual instance of infringement removed… until, of course, the next person posts a pirated copy, and then the process starts all over again.

If YouTube really wanted to “reward those who make our platform great,” it would start by expanding access to its content protection tools and empowering creatives to better protect their own copyrighted works on the site. Then again, YouTube’s own executives have called the platform a “pirate site.” Profiting from other people’s works without permission is in its DNA.

This article was first published in CreativeFuture.

Copyright Industry Intellectual Property

Setting the Stage: What It Takes to Support a Thriving Creative Economy

Throughout April 2021, the Global Innovation Policy Center hosted a series of events focused on ecosystems for innovation, creativity, and craftsmanship.

During the final keynote discussion of the series, MPA Senior Executive Vice President and Global General Counsel Karyn A. Temple talked with RIAA Chairman and CEO Mitch Glazier about how policymakers can help artists — especially in the wake of the COVID-19 crisis.

The full video of their conversation can be viewed below.

Industry Interview

Animate, Elevate, Anticipate

The animation & VFX industry has been at the prime intersection of technology and content for several decades. Innovations in the space often outpace the rate of adaptation.

Creative First is delighted to announce a conversation with Biren Ghose, animation evangelist for India and Country Head, Technicolor, India – one of the largest players, in the world, in the animation and VFX industry.

Biren shares, in the conversation, his experience, expertise and views on the current landscape and future trajectory of a growing $270 billion industry. From the economics to the operations to policy that impacts the industry, the conversation is an enlightening one for not just existing players in the business but also for those looking to take the step into the wonderful world of animation and VFX.

With the lens focussed on the local Indian market, Biren shares how India, in relative to growing markets, still an underserved and nascent market for animation and VFX. Unlike traditional films, where geographical and cultural differences create barriers in relatability, animation circumvents them. A cartoon character for example has global adaptability.

The same characters and broad stories being presented in different languages still retain as much relatability in India as they do in Japan or New York and that’s the beauty of animation. 

Interestingly, the global adaptability translates not just to visual media but to a broader, and highly scalable potential – lifestyle and branding built around content. Animation and VFX based enterprises see content account for only a percentage of total revenue that their developers generate. Merchandising, licensing, events result in significantly higher revenue generation for these properties than traditional film. Take any character from the Marvel or DC Universe, or even Pokemon for that matter – the revenue is a gigantic cumulation of cartoons, movies, television shows, video games, mobile games, t-shirts, action figures, comic books – you get the idea. The list goes on.

The potential of an idea in the space that can find the perfect combination for creativity, technology and marketing is unfathomable. 

On the subject of the process and creativity, Biren stresses on the complexity of not just crafting the perfect story but also executing it. Each frame requires 14 highly developed skills working in tandem to create something of note. These 14 processes are executed with cutting edge technology. Animation extends to advertising and the video game industry as well. Biren highlights, that animation is a medium for kids is a common misconception perhaps led by the traditional and very early days, of the industry . Video games today are a huge market for adults as well and this is simply the result of content being developed to serve their needs. Not to mention that gaming has in the last decade transitioned into revenue generators for individual gamers as well. And not just gaming tournaments but also by monetising “viewers” of online gaming sessions – a form of content consumption growing at a rapid pace.

Shifting gears to policy and education, Biren makes a pertinent point on the current state of affairs by sharing an anecdote. Surprisingly, he highlights that art schools in India don’t use digital tools. Ironic, since the primary tool in the industry, which these students hope to join, is an iPad.

Biren also speaks of the evolution of ABAI – and the  development of a more inclusive AVGC – the animation, visual effects, gaming  and comics industry which is now the governments nodal body that provides grants to the industry. With the AVGC, Biren has now led an effort that originally started with 7 colleges, is now at 27 and has a vision to encompass 200 where digital tools are integrated into the curriculum so students aren’t faced with a difficult transition while entering the professional workspace.

Biren has also been a huge proponent of gender diversity and inclusion of women in the industry. His vision is to have 1000 women as part of the Technicolor family in the near future.

To sum things up, Biren sees a huge growth in the sector with policy and efforts aligning to support the industry. View the video for the details of the conversation .