Training & Strategy | by Danny Meadows-Klue
Last week in a digital management coaching workshop, a senior marketer hit a familiar legal dilemma: “Can I use things I don’t have copyright to?” All I could reply was the rather unhelpful “get a lawyer”.
It’s familiar because pretty much every website publisher has to wrestle with it, and it’s a dilemma because there are strong cultural factors on both sides, and that’s why this is a question that just doesn’t go away. Copyright issues are still a nightmare for pretty much everyone in the process. When this crops up with commercial sites and marketers, it reveals that there’s a need to get up to speed with the issues - even if there's no solution, then the understanding of the challenges alone is pretty handy.
Each firm needs to take their own view on how to apply and police copyright, in what at times, can feel like a lawless medium: the wild wild west. There’s always been a massive amount of copyright infringement on the web, some accidental (kids copying images of their fans onto their own social profiles), some overzealous (retaining credits, but lifting massive chunks that nullify the need for anyone to click through), some malicious (the bottom dwellers ripping off your content and passing it off as their own), and some even organised (video and music piracy networks). Across the spectrum there are breaches, but that doesn’t mean that what’s common elsewhere is acceptable to run on your own site. Back in the early 90s I found myself regularly invited to the Law Society to talk about the challenges to copyright that would mushroom up through the web.
Each firm needs to take a view about how to respond, but for getting a fast download of the bigger picture, there’s a great place to get started in understanding the copyright wars… Jonathan Zittrain from the Oxford Internet Institute gave a fantastic and witty keynote about copyright. Stripping away the law from the themes is useful to those who want to quickly access the debate, because the confusion lies in the challenge to the law itself and the disconnect between law and practice in society.
Zittrain starts with the basics of property rights, exploring what assignment of ownership of property means, then the right to destroy property, the right to use property however the owner chooses etc. It’s a really useful journey, because the complexity of copyright law rests on an understanding of property law. (He also has a wonderfully accessible style that means you really don’t need a law degree to follow). From there, he explores the rights related to land, and the complexity of the rights that allow people limited access to other people’s property, and incursion into some form of space that that is owned by someone else.
All of which crescendos rather neatly into a full frontal assault on current music copyright. Here’s two schools of thought:
• Copyright regime 1: Section 16 from the Copyright designs and patents act 1988.
• Copyright regime 2: “…what I call reality… there are certain things that are fair and not fair in what you do with it”.
Interestingly he points out that the song Happy Birthday is copyrighted to Warner Music, “…which means that if we sang this right now then we could be at risk of infringing these rights.” Then Zittrain delves further into where the grey line is in defining what element of material has to be copied in order to trigger an infringement: 50% of the notes? 5% of the notes? Or just 3 notes? …and of course Zittrain has a neat example of how the copying of 3 notes was enough for one lawsuit.
Where does this leave us? Back at the start, looking for a lawyer, and inviting someone else to take responsibility for the decision. The internet has created an environment that demands a review of the model of copyright. Creative Commons, CopyLeft, and other new initiatives may have the answer, but as Zittrain’s reality and section 16 of the Copyright Act now go head to head, and how this plays out still feels like it’s anyone’s guess.
