Last month the Wall Street Journal reported that four of the world's biggest media companies were in talks to create a video-sharing website to rival Google's YouTube. MIP Week looks at some of the copyright considerations likely to be driving the deal.
Last month the Wall Street Journal reported that four of the world's biggest media companies were in talks to create a video-sharing website to rival Google's YouTube. MIP Week looks at some of the copyright considerations likely to be driving the deal.
The companies named in the report – CBS, NBC Universal, Fox and Viacom – have refused to confirm the deal. But while broadcasters are watching the explosion in popularity of websites hosting user-generated content with interest, they are also anxious. Some copyright owners are now launching rival websites of their own, believing it to be the best way to control and preserve their most valuable asset – their content.
The rise of blogging has led to an upsurge in the amount of user-generated content being posted on the internet, which, in turn, has fuelled websites such as YouTube, allowing users to post video clips online.
"I believe that the development of user-generated content has been due, in large part, to the open-sourcing of the APIs [Application Programming Interface] that allow developers to create mash ups," says Quinn Heraty, founder of Heraty Law. "This, in turn, allows end-users to create new content, or individualized community content that they post to their blogs or their websites."
But when website users upload videos that incorporate clips from TV shows and movies or add soundtracks from their own music collections, many of them will be infringing copyright.
And that has created a whole lot of legal headaches for lawyers.
"From a legal standpoint, the copyright issues that exist with YouTube and its progeny are similar to those which affected Napster and Kazaa," says Bobby Ghajar, a partner at Howrey. "But it's no longer just the record labels and music artists whose rights are implicated by file sharing. The ease of use and popularity of the YouTube model affects a much broader group of copyright owners, from television and movie studios, to individuals who have created copyright content."
One concern shared by many lawyers representing copyright owners is that copyrighted content tends to be posted on to websites as soon as the material has been broadcast on television. This threatens the business model underlying much of commercial broadcasting. The value of pay-per-view shows, for example, is undercut when internet users can download episodes for free from an online video sharing website.
In addition, when copyrighted content is distributed without any attribution to the true copyright owner, those who would otherwise seek permission to use the work may not have the means to contact the owner, says Ghajar.
Susan Kohlmann, a partner at Pillsbury Winthrop Shaw Pittman, adds that as the user-generated content clips get longer, there might be different views of the copyright abuse. "There has been an attempt to limit their length in part to limit the infringement risk. Also, to avoid any liability, some are trying to compensate the content providers with licences but it is not clear if this will work in the long run," she said.
With no specific laws governing the copyright issues in blogging and video-sharing websites, copyright owners are developing their own ways to deal with infringement on the internet. Some are going head-to-head with rivals such as YouTube by launching their own file-sharing websites to better control their own content.
Others are looking to traditional legal remedies such as licensing arrangements.
Fred Koenigsberg, a partner at White & Case, says: "In the just-concluded Congress, there was a major effort in a particular sector by both creators (songwriters) and copyright owners (music publishers) on the one hand, and internet music services on the other, to modify the law to allow for new licensing procedures which would enable such services to thrive and creators and copyright owners to be paid in a simple business model. While the effort did not succeed, as time ran out, we can expect similar efforts in the future – not to change the copyright law to favour one side or the other, but to facilitate the new business models for the benefit of all."
And alternative licensing arrangements are also being developed. Creative Commons, a not-for-profit organization that encourages copyright holders to share their work, has devised a new type of licensing structure that allows end-users to choose the type of licence they want applied to their works. "Users can choose to allow others to share your work freely, or to create derivative works from your material as long as they give you credit. They can allow derivative works without attribution as long as it is not for commercial purposes. They can allow others to make a derivative work based on your work as long as they licence their new material on the same basis," says Heraty.
MIP's November issue looked at how businesses are finding that giving their IP assets away for free can make economic sense.