Respecting Copyright in Time of Crisis

As people around the world hunker down for weeks (if not months) of quarantine and physical distancing, most are looking not only for credible news and scientific information but for ways to escape the often-overwhelming reality of COVID-19 and how it has upended our daily lives. For most people that escape comes through entertainment, and there is a shared sense of gratitude for the vast amounts of copyrighted works that are now easily accessible through streaming video and music services, eBook and audiobook platforms, video game portals, and many other digital resources.

Unfortunately, there are some opportunists who are using the current crisis to pursue their own anti-copyright agendas by urging a moratorium on long- established laws that make access to and enjoyment of copyrighted works possible in the first place. But now more than ever, respecting the rights of artists, authors, entertainers, copyright owners, and countless creative community workers who face uncertain futures is critical to ensure that that creativity and authorship endure.

Now More than Ever, Online Piracy Matters

Despite the fact that we live in a time with affordable access to incredible amounts of legitimately licensed creative works, a recent article on Techdirt-a website that consistently spreads anti-copyright rhetoric-urges copyright owners to now “open the vaults” and make movies, books, television shows, and video games “freely available for downloaders and streamers.” This suggestion might be marginally palatable if Techdirt was talking about access for education or remote learning or for affected groups suffering from financial hardships, but no, it’s merely a group taking advantage of the present crisis to push its own agenda – that all content should be available for free at the expense of those who create content and make it available.

As if suggesting that creative works should be free in a time of crisis wasn’t enough, the article goes on take advantage of creators who are struggling to stay afloat financially by promoting a proposal that incentivizes artists to dedicate their works to the public domain during global emergencies in return for a tax credit. At a time when the government is doling out stimulus checks to most taxpayers without any quid pro quo, Techdirt seems to think that creators ought to be held hostage in order to get some relief from the government. It’s ideas like these that expose just how little Techdirt understands or respects creators and their rights, and sadly it shows how the organization will take advantage of any situation to promote its uninspired agenda.

As more countries around the world issue stay-at-home orders, people who-like Techdirt- want something for nothing seem to be turning to piracy. Initial reports from Italy were not encouraging, showing searches for some of the most infamous pirated sites had “skyrocketed.” A more recent TorrentFreak article also details sharp increases in pirate site traffic in China and around the world over the course of the pandemic. While more country-specific data is not yet available, similar spikes in pirate site traffic are anticipated in places hit hard by the novel coronavirus.

TorrentFreak’s report on Italy ends with the questionable pronouncement that while changes in piracy habits are worth documenting, “they are of course entirely insignificant in the grand scheme of things.” This sentiment-that copyright infringement shouldn’t be a concern during the global pandemic-is a dangerous one that is being used to justify opportunistic behavior by a number of groups that routinely advocate for weak or negligible copyright protections. As Copyright Alliance CEO Keith Kupferschmid recently explained, using the crisis as a premise to steal creative works online is no less disturbing than using it as an excuse to loot a brick and mortar store.

What these arguments actually reveal is at best a misunderstanding or ignorance of the vibrant creative ecosystems and jobs that rely on copyright, and at worst a complete disregard for the livelihoods of the people who produce creative works and the support systems that deliver creative content to households around the world. Anyone who pays attention to the news knows that entertainers, artists, authors, and other creative industry workers are some of the hardest hit by the pandemic. As music venues and film and television studios shutter for the foreseeable future, it’s not just the actors and musicians who go without work. Hundreds of thousands of engineers, photographers, roadies, producers, cameramen and women, grips, editors-the list goes on-now find themselves without a paycheck. When the creative content that these people help produce is pirated, it disrupts the creative ecosystems that they rely upon for work and threatens the ability of the creative industries to bring us the content that we love.

Don’t be Fooled by Veiled Opportunism

Over the past few weeks, the opportunistic behavior surrounding copyright has extended most conspicuously to the world of digital books and e-lending through the actions of the Internet Archive-an organization that fancies itself a legitimate online library but is closer to unauthorized book distributor. While many have written on the legal and ethical issues surrounding the Internet Archive’s “emergency” expansion of already problematic reproduction and distribution of copyrighted books, suffice it to say that the organizations’ leaders and supporters are attempting to take advantage of a global crisis to disregard copyright laws that they have never liked.

And while the Internet Archive’s multi-millionaire founder, Brewster Kahle, unilaterally announced his “National Emergency Library,” he didn’t seem to care an iota about the current financial struggles of the authors and copyright owners who stand to lose major income from the project. A recent article by Neil Turkewitz highlights this glaring disregard:

Instead, they express their “hope” that authors will support it, and provide a mechanism for opting-out? That’s not only not how the law works, but it is irredeemably dishonest, presumptuous and wholly ignores the reality of the existence of most authors.

Thankfully, the Internet Archive’s copyright grab has not gone unnoticed by the authors it conveniently chose not to consult. Using the hashtag #WhatBooksPayFor, Pulitzer prize-winning author T.J. Stiles took to Twitter to expose how the Internet Archive’s “unilateral abrogation of copyright undermines our ability to earn.” In addition to explaining how the copyright laws flaunted by the Internet Archive encourage the creation of new works-in this case his next book project-Stiles explained that countless unsalaried authors rely on royalties to buy food, medicine, and other supplies to see them through the pandemic.

Keeping the Fair in Fair Use

Unfortunately, the Internet Archive is not the only opportunist attempting to loot the copyright system. Almost as troubling is a group of “Library Copyright Specialists” who suggest the boundaries of fair use be expanded in the name of emergency education and access. In a public statement released last month, representatives of “organizations supporting higher education in the U.S. and Canada” detail how they believe the well-established fair use factors should be distorted and applied with even greater deference to unauthorized use than they already are. Specifically, the statement claims that the importance of the fourth fair use factor-the effect of the use on the market for or value of the copyright work-should be reduced due to the “spontaneity” required of remote learning.

Typically, the fourth factor is the most influential determination in any fair use analysis. Nevertheless, these “Specialists” recommend overlooking market harm in favor of quick and unchecked access to copyrighted materials that anyone might want to distribute, reproduce, or display. It’s a proposition that disregards not only the history of copyright law and fair use, but also the established legal frameworks in the Copyright Act that were enacted to facilitate distance learning. It’s also a proposition that completely ignores the harm that would result in overriding the existing licenses and legal constructs that enable online education.

The “Specialists” also make these recommendations without offering any support in the law or legislative history of the fair use doctrine. Fair use has been around since 1841, and it has weathered many other emergency situations – World Wars I and II, the 1918 Spanish Flu Pandemic, the Great Depression, 9-11 and so forth. It is notable that not once during that time was fair use expanded.

In an attempt to ensure that their opportunistic agenda reaches all corners of the globe, many of the same individuals and institutions recently joined a letter to Francis Gurry, Director General of the World Intellectual Property Organization (WIPO), urging the organization to take “clear stand” on ensuring that intellectual property isn’t a “hinderance” to efforts to tackle the coronavirus outbreak. After leading off with the suspect claim that the spread of the coronavirus was discovered through text and data mining that would not have been possible without Canada’s flexible fair dealing exceptions, the letter goes on to use the pandemic as an excuse to override patent, trade secret, and copyright law.

The letter asks WIPO to take “urgent action” and, among other things, call on copyright owners to remove licensing provisions that in their view inhibit access necessary for educational, text and data mining, and artificial intelligence efforts. Once again, no legal or historical authority is offered for their sweeping recommendations to overrule the time-tested laws that promote the progress of science and the useful arts.

Furthermore, the organizations and individuals supporting these extreme measures conveniently ignore efforts by publishers and the greater copyright community to improve distance learning and ease the pain of adjusting to this new normal. Unlike the “specialists,” publishers and others involved in content creation and distribution understand what’s at stake for so many working in creative industries, and they have responded with a wide range of legal options for remote education and at-home entertainment.

Conclusion

As access to credible information and quality entertainment has become absolutely essential for both educating ourselves on the pandemic and trying to stay sane through it, understanding how copyright facilitates the creation and distribution of this content is vital. While various organizations suggest rolling back copyright laws or expanding exceptions, it’s clear that these efforts represent an exploitive attempt to do away with a copyright protections that the very same organizations have been trying to undermine for years. In order to keep our sights set on the long-term benefits of copyright and the vast global ecosystems it supports, we must not fall victim to this kind of short-sided opportunism.