Wednesday, March 25, 2015

The limits of exclusivity

"Proprietary lock-in" is a term sometimes used to describe the perceived aspect of a product or service that is unique and drives value.

In some cases that might be brand, patent or expertise and in the content area which drives Pay TV it is partly the perception of exclusivity.

It may be worth taking a quick look at the legal limits of that exclusivity and how technology has impacted.

Copyright is traditionally presented as the protection for content owners in order that original works can be protected and the authors of those works can benefit from their creations. A balance has always been struck however such that knowledge and information is shared freely. For example education has always benefitted from exceptions to copyright and fair dealing allows the sharing of content for news purposes.

Therefore websites and networks such as YouTube, Facebook, Vine etc can distribute clips (with a credit to the author) in a news context without breaking copyright. The rules are by no means crystal clear but this seems a reasonable conclusion as long as the clips are fairly short (perhaps about 1 minute).

The above exception has always been loosely referred to as news access and while carrying restrictions seems to be generally accepted. Broadcasters in the UK have mutually agreed to the use of 1 minute of sports clips for news purposes.

Much more complicated and possibly significant is the concept of linking to content that is freely available to the public already.

A couple of recent European cases namely Svensson and Bestwater seem to suggest that no breach of copyright occurs when there is merely linking to 3rd party content which is already available to the public. The legal argument is that no communication to a "new public" has occurred.

The UK Newzbin cases go the other way really and suggest that where an element of indexing takes place then a breach of copyright may be committed.

Feedback from law enforcement officers in the UK suggests that in general they seek to use other areas of legislation to protect copyright as they are not convinced that if content is linked only that there is breach of copyright.

Overall this seems to suggest that aggregating links already generally available under a subject heading (much as Google and the other search engines do) without direct permission from the copyright holder is not a breach of copyright.

Given the global nature of the internet this presents quite a problem as if the sources or initial "leaks" of content are not addressed effectively then all the subsequent linking is lawful - probably.