Do Rightsholders Really Own Their Rights?

BY Ali Sternburg
August 28, 2012
In copyright online, anyone can claim to own the rights of others and profit by it … and all too often, they do.

Copyright owners in the creative sector are very vocal in demanding payment for their rights – and removal of material that isn’t licensed – both of which they are of course entitled to do. However, it can easily be argued that we couldn’t make it more difficult for legal services to pay for rights in the current copyright system if we tried.

Many have asked the reasonable question “How is anyone to tell what is licensed and what is not?” However there is another, equally fundamental question: “Can the assertion of anyone that they have any legal right to the content they claim be independently verified?”
The answer to that question, believe it or not, is no.
There are no publicly accessible, authoritative registries of what copyrighted materials exist, who created them, and who owns or controls the rights. None. Zero. In the world.
Incredible, isn’t it?
Sure, there are services like IMDB for films and GraceNote for music – but these are not authoritative – you cannot rely upon them in any legal dispute.
So, how is an online service that receives a request (whether to take content offline, or pay royalties) from a putative rightsholder to verify whether the request is legitimate?
They can’t.
The request, and the assertion of ownership, must be taken on faith. The service could ask for proof of course, but even if a contract was sent in, there’s no way to guarantee that it is legitimate.
Obviously, this situation is ripe for exploitation by the unscrupulous – and the unscrupulous know it.  An online search for the query “bogus copyright takedown” will return hundreds of thousands of results, such as the case just this month where the video NASA posted on YouTube of the Curiosity Rover on Mars was taken down for a time because a small TV station alleged it owned the video since it had broadcast it. That happens to be impossible, by the way, because NASA, as part of the U.S. Government, doesn’t assert copyright (and I think we can all feel pretty confident that if anyone were to own the images being sent by Curiosity, it would be NASA).
This episode didn’t cost anybody any money (except YouTube, and NASA, in wasted time, and making copyright look bad) but unfortunately there are many cases that have. An entity called the “Music Publishing Rights Collection Society” routinely claims music owned by others – so that it can collect money from advertising playing against videos that contain that music.  It is pretty brazen about it, stating on its Facebook page:

We get the pleasure of making money from your videos. It’s a win-win situation :)”

A company called Rumblefish is widely criticized for doing the same thing – most famously claiming rights in birdsong in a YouTube video so it could run ads against the video to make money.
Operators of user-generated content sites are on the receiving end of criticism when these things happen, but the truth is, with no place to turn to validate claims of copyright ownership, what can they do? They already spend untold millions creating rights claim-and-counterclaim systems in order to work around the failure of rightsholders to create an authoritative source of information they could rely on.  As the volume of takedown requests being received by Internet services is dramatically increasing – for Google search alone, more than 5.5 million requests per week – this situation gets worse, not better, with each passing day.
You are probably thinking that there must be some legal sanction for false claims, to deter the mischievous and punish them.
Unfortunately, you would be wrong.
In the United States, the part of copyright law that governs this takedown process and much else besides does say it is unlawful to make false claims – but courts rarely impose penalties for doing so.
Clearly, it is unreasonable to expect other people to protect your property if you can’t even tell them what you own, and if you don’t have any mechanism to allow them to verify your claims of ownership. In any other area of commerce, taking other people’s money intentionally is fraud or theft – yet in the online copyright world, it is a crime largely free of consequences.
This major failing of copyright infrastructure is something that we’re all paying a high price for – including:
  • Artists at all levels of public success who are all too often not receiving anything remotely close to their due share of the royalties being paid by digital services;
  • The Internet services – who have to build elaborate claim and counterclaim systems to process these requests and try and ensure that the unscrupulous can’t take advantage;
  • The rightsholders – who, even between one another, have endless disputes about who owns what partly because in several important areas they won’t even tell one another what rights they own;
  • Services who would like to innovate in making music, films, and books available to the public but can’t – because finding whom to license from is so nightmarish and even once you find them, you have to hire lawyers to make deals one-by-one, country by country, that the whole exercise is just too expensive
  • Policymakers – who are asked to spend a huge amount of legislative time and attention on copyright infringement instead of other essential public policy priorities.

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