Categories
Industry Piracy

Insights from Industry Insiders – Claire Pullen & Matthew Deaner

 

Claire Pullen joined the Australian Writers’ Guild in October 2021 as Executive Director. 

She comes to the Guild with an extensive background in trade unions and membership organisation not-for-profit leadership and management, with a focus on advocacy and campaigning, as well as industrial law and governance. 

Matthew Deaner is the Chief Executive Officer of Screen Producers Australiaa national organisation that unites the screen industry to campaign for a healthy commercial environment. SPA supports the interests of businesses, large and small, in their production of feature films, television programs, interactive content and games across all genres and formats.

Matthew oversees all aspects of Screen Producers Australia’s advocacy work, industrial negotiations, events and operational issues. He also works closely with our Council to set the strategic direction of the organisation as well as identify and execute new business development opportunities. Matthew brings a wealth of knowledge to Screen Producers Australia with his experience as a lawyer in both Sydney and London and in senior policy and strategy positions with Screen Australia and the Australian Subscription Television and Radio Association.

Who are you and what is your role in the creative industry eco-system?

 

CLAIRE: I’m Claire Pullen, Executive Director of the Australian Writers’ Guild.  I joined the AWG in October 2021, having had an extensive background in trade unions and membership organisation not-for-profit leadership and management, with a focus on advocacy and campaigning, as well as industrial law and governance.  

The Australian Writers’ Guild is the professional association for Australian screen and stage writers in film, television, theatre, audio and digital media. We’ve fought for almost 60 years to protect and promote the rights of writers. Our vision is to see playwrights and screenwriters thrive as a dynamic and integral part of Australian storytelling: shaping, reflecting and enhancing the Australian cultural voice in all its diversity.  

MATT: I’m CEO of Screen Producers Australia, the trade body for Australia’s independent film and television producers. We unite screen producers to collectively campaign for a healthy commercial environment, but also bring the industry together to foster collaboration and opportunity. 

What do you think is the most significant impact of piracy on the creative industry and the business of your stakeholders?

 

CLAIRE: Content piracy negatively impacts the Australian screen industry, which is already facing enough challenges. It is already a time of great uncertainty in the Australian film and television sector as the industry waits for government regulation of the international streaming platforms.  

Piracy harms original creators of screen content in particular. Screenwriters who have written original screenplays or created television series are usually entitled to a small share of net profits: income they receive that’s based on the success of the work they’ve created. When pirates make this screen content available for free and illegally, the artist’s income stream is significantly compromised. 

MATT: We are of course very concerned about piracy, and the implications that has across revenue streams for our industry. Producers rely on ongoing revenue streams from completed productions to underpin the development of new projects and piracy is a threat to confidence in those areas. When the balance of rights ownership across producers and platforms is well navigated, production businesses have greater opportunities for stability in their businesses from ownership of their work. Piracy can threaten the stability of those revenue streams and that in turn damages the sustainability and success of production businesses. 

How do you think Australia is measuring up in tackling screen content piracy and/or copyright?

 

MATT: It’s always a challenge to ensure the law keeps up with technology changes and changes in piracy activity, however Australia’s site blocking laws have been a welcome development and we are following closely the debate about whether the laws could be expanded further to make them even more effective. 

What excites you about the future of your industry sector?

 

CLAIRE: We are living in a time where there is global recognition of the importance of script development in the creation of high-quality screen products. When government acts to regulate the streaming platforms, we’ll see a more sustainable and competitive local screen industry. 

An Australian screenwriter’s story – with the right investment and production budget – can not only be sold and watched internationally but it also has the potential to become a successful franchise or series and the beginning of a successful business.  

We want to see action on local content quotas for scripted content and more investment in early development, in order for the Australian screen industry to thrive. This will result in a local sector that supports emerging writers and allows them to develop their careers in Australia instead of being forced to work in overseas markets, such as the US and the UK, in order to maintain consistent screenwriting careers. Local content quotas mean there will be more pathways to commissioning. The Guild’s fight for fair remuneration and respect for the writer’s role in the creative process will allow Australia to retain the creative talent that we need to export globally competitive screen products.  

MATT: The industry’s ability to adapt to and prosper in uncertain circumstances has shone through over the last 18 months and we are in a great position to capitalise on Australian and international audiences’ increasing appetite for content-rich digital services. Government settings are crucial for our sector, and we are anticipating some key decisions in the coming 6 months that, if properly calibrated, could set up the local sector for strong and sustainable growth. 

This article first appeared on ContentCafe

Categories
Piracy

Damages sought against PrimeWire piracy site which claims to operate under the laws of the “Klingon Empire”

PrimeWire’s revenue is sourced via advertising and it offers a massive library of unrestricted on-demand movies. Trial by jury will make available damages of US$150,000 per instance.

PrimeWire’s click-through offers have been deemed to be very risky with insufficient security protections and the site encourages users to use VPN’s to ensure that “the government and the NSA can’t spy on you.” In case of any doubt that the operators understand what they are doing is illegal, the site’s “Legal Stuff” (sic) header claims that the governing law under which the site operates “will be that of The Klingon Empire.”

A jury trial has been demanded and damages sought in a copyright infringement complaint filed by several major studios and Netflix, against ten individuals operating a group of Web sites and IP addresses identified collectively as “PrimeWire,”  said to be one of the most popular illegal sites in the United States.

According to the complaint, the PrimeWire sites receive more than 20 million visits per month from US users alone, who constitute about half of total visitors.  PrimeWire offers content illegally through streaming and download.  At the time of this writing, PrimeWire is still active.

PrimeWire’s operation offers a large library of copyrighted works, including current releases like Ghostbusters (Columbia Pictures, 2021) and Encanto (Disney, 2021).

Service Model

US consumers targeted by PrimeWire get unrestricted on-demand access movies at no charge. PrimeWire’s business model is to capture revenue by selling advertising on the site, and through click-throughs to offers presented on the site – such as VPN services.

Releases available on PrimeWire also violate studio release windows and may be lawfully viewed only through legitimate streaming services.

Examples identified in the complaint include Disney’s Cruella (2021), Universal’s Dear Evan Hansen (2021), and Paramount’s Clifford the Big Red Dog (2021), “all of which were first released in theaters and for authorized on-demand streaming at the same time.”

 

Massive risk to users

 

Visitors who attempt to search PrimeWire’s catalog are likely open to attack, although the complaint makes no mention of such efforts.  ISPs that detect insufficient security protections may present warnings to potential visitors, such as the one below.  Note that the site identified in the warning did not have a domain name that included the word ‘primewire.’

 

The same is the case when a visitor attempts to click through an ad for a VPN service.

The defendants know, but they do it anyway

In the complaint, the individuals behind PrimeWire are identified as ‘John Does,’ because they have concealed their identities, hiding behind aliases such as ‘Dev_Team,’ ‘Silverrain,’ ‘Fugitive,’ and using stock images and fake locations such as ‘Valyria, Earth’ in their profiles, and provide false identification in their domain registrations (although one hosting provider lists PrimeWire’s physical location in Seychelles).

PrimeWire also encourages their site visitors to do the same by using a VPN, to help ensure that ‘the government and the NSA can’t spy on you.”  And they get click-through revenue from the VPN referrals.

 

“Legal Stuff”

 

PrimeWire’s “Legal Stuff” (their term) says that the governing law under which the site operates “will be that of The Klingon Empire.”

 

The complaint itself

 

Read the Complaint (Case 2:21-CV-09317), filed in the US District Court of the Central District of California, Western Division

Media properties owned by business units of The Walt Disney Company, Warner Bros., Columbia Pictures, Paramount, Universal and Netflix were identified in the complaint as having been appropriated by PrimeWire for illegal distribution.

 

Why it matters

 

The plaintiffs content that the damage to them is significant, “irreparable, and growing.”  Substantial resources and years of effort go into distributing copyrighted work, and these investments are recovered via paid distribution through lawful channels that include streaming.  Streaming by PrimeWire “undermines the market for licensed distribution and usurps Plaintiffs’ exclusive rights under copyright.”

Accordingly, the plaintiffs ask for trial by jury, for the maximimum damages available under 17 U.S.C. Section 504: $150,000 per instance. and for recovery of attorney fees and costs under 17 U.S.C. Section 505.  They also ask that the domains be disabled and turned over to the plaintiffs.

Surprisingly, PrimeWire’s communications providers, including CloudFlare, were not named as defendants, as they were identified as vehicles that helped PrimeWire conceal its operations.

This article first appeared on piracymonitor.org.

Categories
Uncategorized

MADRAS HIGH COURT DECISION IN NOVEX VS DXC- WILL IT CHANGE THE WAY COPYRIGHT LICENSING BUSINESS IS CONDUCTED IN INDIA? IMPACT AND ANALYSIS (PART 1)

The Madras High Court in the case of Novex Communications Pvt. Ltd vs DXC Technology Pvt. Ltd & Anr has held that the business of issuing licenses in any work in which copyright subsists can only be done by a registered copyright society if the work is incorporated in a cinematograph film or a sound recording.

It held “There is no doubt true that an owner need not necessarily join a copyright society. The first proviso to Section 33 makes it clear that the right of an owner to issue licenses, in his individual capacity, remains unimpacted, subject to the rider that such a right must be consistent with his obligations as a member of any copyright society. However, once the grant of license moves from the owner in his individual capacity, and transcends into the realm of a business, Section 33(1) and/or the second proviso applies. The legislative intent is manifestly clear that the business of licensing must be routed only through a copyright society”.

Read the judgement here.

Context:

Novex Communications Private Limited, in the capacity of an assignee of copyright or as agent of sound recording owner issues licenses for on ground public performance  (such as hotels, events, etc).

For instance, few music labels have entered into assignment agreements with Novex assigning the on ground public performance right to Novex. Others like YRF Music has appointed Novex in the capacity of an agent.

Novex had filed a copyright infringement suit in Madras High Court against DXC Technology Pvt. Ltd. and Cognisant Technologies Solutions India Pvt. Ltd, alleging that despite Novex being the owner of the on ground performance rights of certain labels, the defendants played their songs without obtaining a license from Novex.

The preliminary issue raised by the defendants before the Court was that the business activities of Novex will amount to carrying on the business of issuing or granting licenses which is statutorily barred under 33 of the Copyright Act, as Novex is admittedly not a copyright society or a member of any copyright society.

The primary issue before the court thus was “Whether Novex is legally permitted to issue or grant license under the Copyright Act without being the copyright society under the Copyright Act as contemplated under Section 33 of the Copyright Act, 1957?”

What does Section 33(1) of the Copyright Act provide?

“Section 33 Registration of Copyright society.—

“(1) No person or association of persons shall, after coming into force of the Copyright (Amendment) Act, 1994 (38 of 1994) commence or, carry on the business of issuing or granting licences in respect of any work in which copyright subsists or in respect of any other rights conferred by this Act except under or in accordance with the registration granted under sub-section (3):

Provided that an owner of copyright shall, in his individual capacity, continue to have the right to grant licences in respect of his own works consistent with his obligations as a member of the registered copyright society:

Provided further that the business of issuing or granting licence in respect of literary, dramatic, musical and artistic works incorporated in a cinematograph films or sound recordings shall be carried out only through a copyright society duly registered under this Act:…”

Highlights of the Judgement:

  • The Court distinguished the right of a copyright owner in his individual capacity from that of a commercial enterprise involved in the business of issuing licenses thereby interpreting that the former is permitted to issue licenses as a copyright owner, but the latter can do only if it is a registered copyright society. [E.g., A music label as an owner of copyright would be entitled to issue licenses under Section 30, however an entity like Novex, PPL, etc. would fall foul of Section 33 second proviso since they are not a registered copyright society].
  • While ruling that despite being an assignee of copyright, Novex cannot carry out the business of issuing licenses, the Court observed that:
    • It is no doubt true that the assignee becomes an owner by virtue of Section 18(2) of the Act and is, therefore, legally entitled to issue licenses under Section 30 as the owner of the copyright. Section 30 merely recognises the right of the owner to grant a license and does not make a distinction between individuals and business entities in the matter of granting license. That distinction is, however, at the heart of Section 33 which clamps a prohibition on the “business of issuing or granting licenses” except through copyright societies [Clause (1) and second proviso to Section 33], while retaining the right of the owner, in his individual capacity, to exercise the right of licensing his works conferred on him by Sections 18(2) and 30 of the Act.” (Para 28).
    • The right of an owner, in his individual capacity, to exploit a right by issuing a license remains untouched. However, when it comes to the “business” i.e., a commercial enterprise of issuing licenses, the law, as it presently stands, requires it to be routed only through a copyright society registered under Section 33(3) of the Act”. (Para 29)
    • “The argument that the second proviso interferes with the right of the copyright owner under Sections 18 and 30 of the Act is clearly misconceived. Section 33(1) and its second proviso do not touch upon the right of an owner, nor does it debar him from dealing with the business of issuing licenses for his works in his individual capacity. It merely regulates the mode and manner of its exploitation through the business of licensing by routing it through a copyright society”. (Para 31).
  • While referring to the legislative intent behind the Copyright Amendment Act, 2012 in amending Section 33 to ensure that royalties are payable to authors, the Court held “In the backdrop of the aforesaid, it is clear that the mischief preceding the Copyright (Amendment) Act, 2012 was that copyright societies had been taken over by owners, relegating authors and composers to the background. Secondly, by virtue of Sections 17 and 18, authors and composers had absolutely no share in the royalties. The Copyright Amendment Act, 2012 sought to remedy this by first, undoing the unfairness of the earlier regime by making authors and composers on par with owners in the matter of administration of copyright societies. This was done by amending Section 35. The next step was to amend Section 18 & 19 to provide for equal share of the royalties to the author. Section 33 was then amended to ensure that the business of issuing licenses in copyrights were routed only through copyright societies so that the aggregate of the royalties so collected, could be shared equally between the authors and composers on the one hand and the owners of the copyright on the other. It is therefore impossible to accede to the argument of the learned counsel for the plaintiff that notwithstanding the clear mandate of Section 33(1) and its second proviso, the business of licensing works in sound recordings can be done by business entities like the plaintiff, dehors the aforesaid provisions. Such an interpretation would defeat the very purpose of the 2012 Amendment and would be obfuscated in as much it would divert the revenue from royalties which were to be pooled in through copyright societies, to be shared equally between the owner and author”. (Para 36)
  • The Court disagreed with the view taken by Delhi High Court in the case of Novex Communications Private Limited v. Lemon Tree Hotels Limited wherein the Delhi High Court had held that second Proviso to Section 33(1) talks of issuing or granting of license with respect to the musical work in sound recordings, it is only for the musical work in the sound recording and not the sound recording itself. The Delhi High Court had ruled that if second proviso is to apply to sound recording and cinematographic films and not just underlying works therein, it would nullify or render otiose the first proviso to Section 33(1).

Impact on the Media and Entertainment industry:

  • Currently there are several entities which are carrying on the business of issuing licenses in songs (sound recording rights). These also include entities involved in digital distribution of music. Going by the interpretation of the Madras High Court, all such entities are not entitled to conduct business of issuing licenses other than through a registered copyright society.
  • In relation to sound recording rights, the only registered copyright society is Recorded Music Performance Limited (RMPL). The application of PPL (Phonographic Performance Limited) was rejected by the Government and the challenge by PPL is pending before the Delhi High Court. In the absence of any other registered copyright society for sound recording rights, the Madras High Court decision would result in either sound recording owners issuing licenses independently or result in rights being assigned to only copyright societies such as RMPL.
  • The decision does not impact the functioning of IPRS as the position qua IPRS was not under debate. If anything, it adds further clarity that the business of issuing licenses in underlying musical and literary works in sound recordings and cinematographic films will need to be routed through IPRS.
  • There is currently no copyright society registered for cinematographic films. Applying the same principle, it would have to be seen as to how would entities which are in the business of issuing licenses in cinematographic films conduct business in the absence of a registered copyright society.

While we would be dealing with a detailed analysis of the judgement in the second part to this post, it would be relevant to pose certain questions:

  • How would doing business of issuing licenses in sound recordings and cinematograph films fulfil the legislative intent of royalty payment to authors of underlying works as a copyright society for sound recording/ cinematograph film is not required to have author of underlying works as its members?
  • Section 33 (3) proviso provides that the Central Government shall not ordinarily register more than one copyright society to do business in respect of the same class of work. Moreover, there is currently no transparency provided in the status of applications filed before the Government on status of copyright societies applications and their registration. For instance, SRAI (Screenwriters Rights Association of India) has not yet received registration as a copyright society. In the absence of there being a time bound process for rejection/ acceptance of applications as a copyright society, the question arises whether the interpretation of the Madras High Court on Section 33 of the Copyright Act mandating business of issuing licenses through a registered copyright society be in the teeth of freedom of trade (Article 19(1)(g) as well as freedom of not being a member of an association (Article 19 (1) (c) of the Constitution.
  • Should there be more transparency in the Government functioning in relation to copyright society applications requiring the status to be made public in a time bound manner?
  • What happens to such business entities who are in the business of issuing licenses in cinematograph films in the absence of there being a registered copyright society for the same? 

We would be dealing with the arguments raised by the parties and our analysis on the judgement in the second part to this post.

Image source: here

This article was originally published in IPRMENTLAW

Categories
Industry

Insights from Industry Insiders: Alison Crinion, Communications Director, the Irish Industry Trust for IP Awareness

Alison Crinion is a graduate of the National College of Art and Design, Dublin, where she combined Film Studies with her Fine Art Degree. She has a passion for film and enjoys many different genres – depending on her mood.

Alison joined Littlebird Film and Television in 2001 where she was General Manager of Denzille Private. During this time she cemented relationships with the film industry in Ireland across Distribution, Exhibition and Production that she still holds today. She hosted a great number of talents for screenings and events such as Joel Schumacher, Jim Sheridan, Quincy Jones, Colin Farrell, Susan Sarandon, Cate Blanchette and even Paolo Coelho.

As a freelance consultant Alison has worked as Marketing, Communications and Events Consultant for Sony, Paramount, Universal, the Irish Cinematographic Benevolent Fund and Screen Ireland.  Since 2013 Alison has held the position of Communications Director for the Irish Industry Trust for IP Awareness. This is the Film and TV Industry’s organisation dedicated to the protection of creativity and copyright.

Alison is also an experienced certified Yoga Teacher and owner of Namaste House Yoga School and has two Maine Coon cats, Kali and Krishna. Her favourite film of all time, Goodfellas – ‘As far back as I can remember, I always wanted to be a gangster’.

 

Who are you and what is your role in the creative industry eco-system?

 

I’m Alison Crinion, Communications Director of the Irish Industry Trust for IP Awareness. The Irish Trust is the little sister to the UK Industry Trust and we both sit under the umbrella of the British Association for Screen Entertainment (BASE.org). We are the peak consumer education body for the UK and Irish film and TV industries, promoting the value of copyright and creativity.  

Industry funded, our aim is to address the ongoing challenge of film and TV copyright infringement. We do this by inspiring audiences to enjoy wonderful movies first and foremost at the cinema, but to also value creativity and always watch film and television content via legitimate sources.  

The Trust in Ireland works with a wide coalition of entertainment industry stakeholders across a range of insight led activity, successfully engaging with audiences on the issue of content infringement.  

For many years, ‘Moments Worth Paying For’ have been our flagship campaigns, sustaining high levels of awareness – we estimate here in Ireland they are seen by approx. 3 million people annually.  These campaigns are wonderfully supported by talent, who speak directly to our audiences in cinemas and online – both thanking them for buying a ticket and reminding them of the hard work that goes into making a movie. We have had great contributions from; The Rock, John C Reilly, Ricky Gervais and the entire cast of Magic Mike XXL.  

During the pandemic the UK Industry and Irish Trusts acted as allies for cinemas and our industry partners. The Irish Trust created online campaigns with our industry partners, reminding audiences of the magic of cinema. As cinemas reopened, we reviewed our messaging, ensuring that when ‘Moments’ returned to cinema in summer 2021, we were equipped with impactful and motivating messaging.  We relaunched two very different campaigns Kurupt FM gang from People Just do Nothing: Big in Japan giving us a cheeky irreverent message and the family friendly cast of Ghostbusters: Afterlife welcoming us with open arms back to the movies. 

With the assistance of funding from the Motion Picture Association, the Irish Trust created a series of Irish campaigns called #IMAKEMOVIES. This series of messages focused on local Irish industry voices and how they perceive the threat of piracy. This gave the Irish Trust the opportunity to work with great people like the teams from the Irish Film Institute, Odeon Cinemas, Cartoon Saloon, Cinemagic and even their ambassador, the magnificent Saoirse Ronan 

What do you think is the most significant impact of piracy on the creative industry?

 

In recent years, there has been a proliferation of fresh routes to illegal sources of content. Apps and add-ons, social media and encrypted messaging services have joined traditional methods for copyright infringement, with the impact being felt across the entertainment industry.

In Ireland, films make up 70% of pirated materials, and costs the Exchequer approx. 70 million in lost tax returns annually. 

Tackling online piracy requires a multi-faceted approach, which includes education for viewers. Piracy stops investment in the industry, and a first-time feature or small independent film needs every ticket and every legitimate view. Piracy prevents viewers enjoying more great small films with big hearts such as The Young OffendersThe Hole in the Ground and Sing Street. 

Does piracy affect your business or that of your stakeholders?  How?

 

Ireland is proud of its rich storytelling tradition. We are a desirable location for filming, we have a strong stable of talent in front of and behind the camera.  The impact of piracy will jeopardise the growth of this wonderful industry. We need to protect the 18,000 people who depend on this industry for employment. 

Consumers need to understand that the amount of time, effort, and investment it takes to make a film or television programme is more than passion – it is also someone’s livelihood.  

Even a movie you hate still employed many people and gave a few of them the start and encouragement they needed to go on and get more work in the next film.

Accessing content illegally impacts on those who work on set and behind the scenes, like the writers and caterers, to those working in the cinema, each person has a right to get paid for the job they do. 

What is the biggest challenge in the fight against piracy?

 

It is hard not to sound preachy here, however, I’m going to go ahead and preach…  the lack of consequence is a huge challenge for us here in Ireland. When we look at the reasons why people infringe it mainly comes down to wanting to watch what they want to watch, when they want to watch it.  

If there are no negative outcomes to this activity, then it makes it very difficult to persuade people (especially 16-25-year-olds), that it is not okay to stream content illegally.

The public see movie-stars and think that there’s no harm in ‘taking’ from them as they appear to have enough money to spare. Sadly, the reality is the impact of film piracy hits those who can least afford it.  

How do you think Australia is measuring up in tackling piracy?

 

Piracy is a global challenge and the articles put forward by Content Café illustrate to me that Australia has mobilised the industry to act together in a cohesive way, supported by Government and ready to step up to the challenge. 

The pandemic was devastating to the film industry and it has been inspiring to witness the ‘return to cinema’ efforts and outcomes. What we have learned mostly is that we are better when we work together.

What are you watching and recommending to friends at the moment?

 

Deadly Cuts, one of the funniest films I have seen in a very long time. It has come along exactly at the time we most need a laugh. Written and directed by Rachel Carey and starring a strong Irish female cast it is a black as ink comedy about accidental vigilante hair stylists who go to great lengths to protect their patch, oh yeah and Mrs Doyle from Fr Ted is in it…amazing. 

In TV land, I’m glued to Succession on SKY, I’m a huge fan of Jesse Armstrong since his Peep Show days I am a sucker for a little creative swearing. Finally, as this is for Australian audiences, I am addicted to Married at First Sight – Australia. E4 started screening it during lockdown and now I’m on Season 8. It has taken me through some dark nights!!! 

What excites you about the future of your industry sector? 

 

Ireland excites me, we have endless possibilities here, creative talent, breath-taking locations and dark humour. Screen Ireland has announced its ‘Building for a Creative Future 2024’ strategy and it is showing wonderful investment in the industry, particularly in developing crew hubs across the country.  

I truly believe if we nurture our home-grown talent, we will be unstoppable and that’s good for the economy, good for the sector and good for the soul.

This article was first published on ContentCafe

Categories
Copyright screenrights

Insights from Industry Insiders: James Dickinson, Chief Executive of Screenrights

Who are you and what is your role in the creative industry eco-system? 

 

I’m Chief Executive of Screenrights. Screenrights is a non-profit organisation that provides an important income stream for rightsholders in screen content, whilst also facilitating the usage of that content by educators, the government, and pay television retransmitters through our licences.  

Essentially, if a program has been broadcast, these secondary users are entitled to make use of that program under the Copyright Act. Screenrights makes sure that the creators are fairly remunerated for that usage. We have over 4,800 members around the world including producers, writers, directors, distributors, broadcasters, studios, music rights holders, artists, and others! 

We’re also expanding into other services for the screen industry, trying to take some of the administrative burden off the plates of creative practitioners through Disbursements and Residuals management and reporting, and looking into alternative collective licensing solutions. We want to find the things that are causing headaches and friction in the industry and focus our strengths as an organisation in data and systems on alleviating some of those pains. 

Does piracy affect your business or that of your stakeholders?  How?

 

Piracy was actually core to the appointment of Screenrights in our original capacity. Screenrights licences were created so that teachers were no longer pirating when they copied television shows for class. The provision was created under the Copyright Act.

It was an innovative solution which ensured the education system could still use the content, but also that the copyright owners were fairly compensated. Piracy does affect our business and our stakeholders.  

We see our role as being to help ensure there are legal ways to access content so that piracy can never have an excuse.  If we can build more ways for end users to access content legally, while paying those who make that content, it’s better for everyone involved. 

Educators have relied on Screenrights licensed content more than ever before during the pandemic with remote learning requirements, and we saw records of usage via the resource centres (licensed video-on-demand services for educational institutions) increase exponentially over the last couple of financial years. It’s been great to see our members’ content provide such educational support. Certainly, the secondary royalties that come from this are a key income stream for many content creators, and diversifying income allows for more excellent programs to be made. 

What do you think is the most significant impact of piracy on the creative industry?

 

I think people don’t realise how fragile the structures are that create local screen content. And because they are fragile, they are most at risk from piracy. Many people in our creative fields are already working as much from passion as for financial gain.  

If the pandemic has taught us anything, it’s that our screen industries provide an incredibly valuable function in society. Who didn’t turn to screen content to get themselves through lockdown? 

 

Australia has a great international reputation in our film and television capabilities. Imagine if all of that content were valued properly, how we could further nurture our production industries and support creative careers? Piracy is one of a few ways in which creative industries are undervalued. But it’s one that we can avoid on a personal level, so it’s one that everyone can do something about. 

What is the biggest challenge in the fight against piracy?  

 

I think it’s getting people to see that their actions are hurting the people who are creating the content that they love. Casual pirates see it as a victimless crime or think that the victim is some remote Hollywood mogul who they don’t care about. But in fact, the victims are all the people that work as a huge collective to create those works. They are not rich, they are not remote, and they are impacted by piracy.  

How do you think Australia is measuring up in tackling piracy?

 

Probably other people are better placed to answer that question more generally. But I suppose from Screenrights’ perspective, we have a unique view, which might be useful. As I said, the original educational licences were created in our copyright law in response to piracy.

Not to legitimise piracy but recognising that in some circumstances, where there is an important societal need for access to content (such as for education), then we can create an exception from copyright but still ensure that the creators get a fair fee. That was a unique Australian solution to a piracy problem at that time, and it has worked extraordinarily well.

Recently, those solutions have been under attack from interest groups seeking to undermine copyright more generally. I think instead we should be thinking, are there other ways we can apply this approach? 

What are you watching and recommending to friends at the moment?

 

Total Control, Stateless, Mystery Road and The Newsreader are a few more recent highlights. 

What excites you about the future of your industry sector?

 

As I mentioned earlier, Screenrights saw the use of our Australian Educational Licence explode over the pandemic. Our raw usage records, which we receive from the resource centres in order to allocate royalty payments, increased from 5 million in 2018/19 to over 17.7 million in 2020/21.  

It was fantastic that our members’ content could provide such a useful service to the sector in such a difficult time, and with new initiatives such as the ABC Education platform making use of the licence, we’re excited to see screen content being used in ever more innovative ways to support learning. 

If we can continue to appreciate the importance of telling our own diverse Australian stories and reflect that in the ways that we support our screen industry –as individuals and on a government level – there’s a lot more to come from our fantastic creators. 

 

Screenrights is proud to play our part in supporting this vital industry, and we can’t wait to see what’s next.

This article was first published on ContentCafe

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Blog Intellectual Property Media Platform Accountability

Those Problematic Comments on Facebook—Who Bears Responsibility for Them?

Unless you have been living in a cave, you will be well aware of Facebook’s current travails, fed by whistle-blower Frances Haugen’s explosive testimony about how Facebook researched but ignored findings that suggested the company’s algorithms were harming individual users by promoting content that kept them engaged—but at a cost to their mental wellbeing. In other cases, Facebook promoted user “engagement” over such basic considerations as factual accuracy, impact on community health (COVID misinformation), public safety (January 6 attack on the US Capitol) and avoidance of sexual exploitation. Facebooks use of self-reinforcing algorithms to maintain a closed loop of content and the creation of “echo chambers” for users, especially users addicted to fringe conspiracy theories and other non-mainstream views, is one problem, as I wrote about recently. It’s spotty record in content moderation is another. Part of the blame for this lies with a pernicious and widely abused piece of legislation, Section 230 of the 1996 Communications Decency Act. While this legislation may have been well intentioned at its outset, over the years it has been interpreted by US courts as providing blanket immunity from liability for internet platforms with regard to any user-generated content that they distribute, including user comments on posts. And digital platforms like Facebook have acted accordingly; namely done as little content moderation as they can get away with.

While Facebook is not liable for whatever content is posted in user comments, in an interesting wrinkle coming out of a defamation case in Australia, parties who posted content to Facebook are having to defend themselves against liability for comments made by others about that content. So far this has been limited to news publishers who used Facebook to reach a wider audience for their content. Traditionally, publishers have been expected to moderate content that they publish. Among other things, they are expected to avoid publishing libellous comments from users, (such as in “Letters to the Editor” columns), by exercising editorial oversight. Likewise, news outlets moderate the content of their own websites, including comments posted by readers. But what about comments posted by readers to Facebook? They could be seen as similar to a “letters” feature in a newspaper but carried (distributed) by Facebook rather than by the publishers themselves, either in their paper or on their own websites. But Facebook is off the hook.

The defamation case in question involves a suit by an Australian citizen, Dylan Voller, against two Australian media outlets, the Australian and Sky News, for comments made on their Facebook pages by other Facebook users. The Australian court held that the media outlets were liable for the comments left by readers in response to content that the outlets had posted to Facebook. Whether the comments themselves were defamatory has not yet been decided as the ruling focused on who was liable for the comments. The Rupert Murdoch owned outlets had offered the defence that they were neither able to moderate the comments on Facebook’s platforms, nor switch them off, because these were controlled by the platform. At the time, Facebook did not allow comments to be switched off in Australia. Why? The comment feature encourages user engagement, and this helps build Facebook’s bottom line. After the initial Australian court case in 2019, Facebook finally agreed to allow news outlets to delete comments but insisted that they could only be disabled one post at a time. Eventually, earlier this year, Facebook changed its policy and announced that all users will have the right to control who can comment on posts.

In Canada, the CBC has now decided to shut down all Facebook comments on its news posts. Initially, it did so for just a month, citing the “vitriol and harassment” that its journalists face on social media, but it has now made that decision permanent. The CBC notes that:

We know certain stories will draw out obnoxious and hateful comments. The truth is we spend a considerable amount of attention and resources attempting to moderate our Facebook posts. It takes a mental toll on our staff, who must wade into the muck in an effort to keep the conversation healthy for others. It is not sustainable.”

In explaining its decision to make the disabling of comments ongoing, it continued;

we were seeing an inordinate amount of hate, abuse, misogyny and threats in the comments under our stories. Our story subjects were attacked. Other commenters were attacked. Our journalists were attacked. Misinformation and disinformation were rife.

As a result of this toxicity, we were posting fewer of our stories and videos to Facebook, knowing our story subjects would face certain abuse and particular communities would be targeted. When we did share stories to Facebook, we spent a huge amount of time and effort cleaning up the sludge.”

This is distressing but it is the reality. There seems to be something about the internet that encourages toxicity in public discourse amongst a small but vocal minority, who seem to have nothing better to do than resort to hateful, racist, misogynistic comments and personal attacks, something that would never be tolerated in the offline world. People engaging in that kind of behaviour would either not have a platform to propagate their bile or they would be shut down, pronto. Is it the anonymity of the internet, or the knowledge that small, marginal voices will be amplified and given greater credibility by the nature of the social media platforms they inhabit that encourages this behaviour?

One cannot blame Facebook for the dark side of human nature, but one can reasonably expect it to step up and own what it has created–and address the problem. Just as news publishers in the past kept the crazies out of the limelight, so too should we not have an expectation that the world’s largest social media platform ought to exercise greater editorial oversight over what it distributes? Note that in the case of the CBC, and media outlets in Australia, the publisher of the material that was the target of negative comments on Facebook had to take on the task of moderating the content. In the US at least, Facebook can hide behind Section 230 immunity for civil liability.

In an article examining the “Unintended Economic Implications of Limited Liability Regimes for Online Platforms”, German commentator Stefan Herwig notes that Facebook does not have to factor in “economic externalities” because it has been able to offload its costs to others when it comes to algorithmic amplification and content moderation policies. These include “journalistic research corrective agencies” for dealing with disinformation or police investigative agencies with regard to hate speech or terrorist propaganda. However, the principle should be the same as with environmental contamination; the polluter should pay. Facebook does, of course, undertake some content moderation—content that violates its terms of service and content that potentially violates criminal law, an area where no platform immunity exists. But it does so at a minimum cost, automating where it can and outsourcing to the lowest cost (often offshore) provider where it cannot. The result is that automated systems often get it wrong, either blocking content that should not be blocked, as in this recent case highlighted in the Canadian media, or else not blocking content that should be blocked. One could argue that Facebook is damned if it does, and damned if it doesn’t but it is hard to feel sympathy for a trillion dollar company that dominates social media and has made scale its prime asset. If scale brings with it additional costs in terms of hiring real people to perform essential tasks to keep content within socially and legally acceptable bounds, that is part of the price that has to be paid.

While deeper user engagement is good for business, Facebook may find that it has embarked on an increasingly risky path. If reputable organizations are becoming increasingly reluctant to post content to the platform because of the proliferation of irresponsible, vindictive and defamatory comments, this is eventually going to hurt the company’s bottom line. One way to “encourage” Facebook (and other platforms) to take a more active role in moderation would be to modify the blanket Section 230 civil immunity that is provided, requiring platforms to accept more responsibility in cases where users or society are being subjected to real harm from the dissemination of damaging user-generated content.

Supporters of Section 230, like Prof. Eric Goldman of the Santa Clara School of Law, claim that elimination of platform liability immunity will curtail “niche non-majoritarian voices”. Obviously not all non-majoritarian voices are down in the gutter, but some are, and giving them a platform to spread their poison serves no useful purpose. (See “Thank You Professor! Explaining Section 230 to Canadians”). Short of fixing Section 230 in the US—and enacting measures in other countries to hold the platforms responsible for content they distribute and profit from—the only viable solution seems to be to switch off user-generated comments because the bad outweighs the good, especially if or when the burden of legal responsibility is placed on the party posting the content and not on the platform nor on the party making the defamatory comments.

There seems to be something wrong with this picture with respect to where the burden lies.

This article was first published on HughStephensBlog

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Interview

How Vietnamese Filmmaker Bui Kim Quy Faced Death, Real & Imagined, in Her Film “Memoryland”

When her second film Memoryland held its world premiere at the Busan International Film Festival’s New Currents competition last month, Vietnamese director Bui Kim Quy had to give it a miss due to her health conditions.

“I was diagnosed with lung cancer after the shoot wrapped in late 2018. Since then I have been undergoing treatment (which also explains why we had a drawn-out post-production). This pre-existing medical condition prevented me from getting the vaccines. I live in Hanoi and can’t even travel by plane or by car to other places in Vietnam, let alone traveling abroad,” says Quy.

While she is now nursing herself back to health, at one point she was even making arrangements for her own death, including getting a traditional in-ground burial plot for herself and one for her mother – not unlike the elderly couple in Memoryland who hire a funeral planner to make sure their burials will be handled in the traditional way after their death.

Death serves as the central theme that weaves three interconnected stories together in Memoryland, which also include a young man who chooses to cremate his mother in the city instead of a traditional burial in her village and a young widow who brings the ashes of her construction worker husband back to the village of his ancestors.

The film is partly based on Quy’s personal observations of death. In a letter her father wrote before he died in 2012, he opted for cremation to make it simple for the family. But the family decided to follow the traditions. “After the burial, we could feel that my father’s departure from this world was a happy one,” says Quy.

“Birth and death come in a cycle, which will only be complete with burial. Old people don’t wish to have their bodies burnt through cremation,” Quy says. “But burial land is becoming scarce because of modernization and traditional burial practices are vanishing. Preparing for death and worshipping the dead are essential in Vietnamese culture. I love these aspects of our culture and will continue to tell stories about them in the future.”

As a child, Quy took to funerals rather than weddings. She vividly remembers funeral processions, including how family members sent the deceased to the afterworld through a symbolic bridge – and how she liked to run alongside them. But this once common funeral rite is now almost a rarity, as traditions have been made simplified.

Quy was born and grew up in the 1980s in a small village in the suburb of the capital Hanoi. Surrounded by paddy fields, it had a pond in front of the communal house and a temple right in the middle of a rice field, with lots of centuries-old trees around it. This seems like the perfect rural setting for Memoryland, but her village has lost much of its character due to rapid development.

“Modernization has brought on a great sense of loss. Many trees were cut down to make way for roads and the communal house area has become smaller, so has the cemetery,” Quy says.

In the end, Memoryland was filmed in Thanh Hoa province, northern Vietnam, the home province of producer Nguyen Mai. Mai is now based in Munich after moving to Germany 15 years ago. She was able to travel to Busan and attended Memoryland’s post-screening Q&A with a live audience.

“The Korean audiences raised many interesting questions. Many of them noticed the similarities between Vietnamese and South Korean funerary customs. The elderly audiences felt that a part of their lives was reflected upon in the film,” says Mai.

Quy has enjoyed a strong relationship with the South Korean film festival. Memoryland is supported by Busan’s Asian Cinema Fund for script development, while her feature debut The Inseminator received the same fund for post-production and had its premiere at the festival’s A Window on Asian Cinema section in 2014.

Mai produced both films alongside Dang Xuan Truong, Quy’s husband, who also served as cinematographer and production designer. Truong won the best cinematography award at the ASEAN International Film Festival in 2015 for The Inseminator.

After Busan, The Inseminator went on to play in Rotterdam, Gothenburg, Taipei, and Munich, and most recently in Locarno this year. But the film, about a dying old man who takes extreme measures to find a bride for his son to continue the family lineage, was banned in Vietnam.

“My film has violated the Cinema Law, which forbids any incestuous behavior onscreen,” Quy says. “I could have got away with it if I changed the daughter’s character: to make her an adopted daughter of the old man, rather than his biological daughter. But that’s not my vision and what’s depicted in the film did happen in real life. By keeping to my story, I’ve fulfilled my duty as a filmmaker, just like the censorship regulators have fulfilled theirs by banning the film.”

Going forward, Quy hopes that the new Cinema Law will allow films to be rated for different audiences, making it possible for films like The Inseminator to be screened in film festivals and for academic purposes.

It came as a big relief to Quy and her team that Memoryland has passed the local censors, with an NC-16 rating. It has just screened at the Vietnam Film Festival, which ran from November 10-16. However, Quy says that it is very hard for low-budget, independent films to get a theatrical release, as the distribution system is mostly for commercial films.

As her health is improving, Quy has a couple of new projects in development, one of which is set in the same village as Memoryland. She is also producing an experimental project for seven of her students at the Hanoi Academy of Theater and Cinema. She has full confidence in the future of contemporary Vietnamese cinema.

This article was first published on The Credits