How Our Ideas Will Create a Strong and Profitable Partnership Between YouTube and Freelance

Artists

Freelance Artist Coalition

Balancing Artist Interests

As artists, we have two main interests: We want STRONG copyright protection to

ensure we are fairly compensated for enjoyment of our work;

However, we also want LEGAL ACCESS to other artists’ copyrighted work to use in creating ‘transformative’ new works.

Today, through our presentation, we hope to introduce specific ideas that will find the RIGHT BALANCE between these two potentially conflicting interests.

Protection vs. Innovation Krista Ayers

Promoting innovation and creativity requires balancing artist protection for an original work with clear guidelines that allow new creations without fear of a lawsuit.

Difficult to establish one-size fits all solution due to the diverse artistic mediums: what works for books doesn’t always work for photos, or videos, or music.

To promote clarity, artists would like some safe harbor provision in the fair use statute, e.g.: Books and literary works: “snippets” Movies and Videos: 30 seconds air time Artwork: No more than 10% of the original work, and no more than 20% of new

work. Music: no more than 3 chords or 10 musical notes

Provide certainty to independent artists who wish to create a new work but are uncertain of fair use laws.

Protection vs. Innovation Krista Ayers

Independent freelance artists generally don’t hire attorneys, and may not keep up with changing IP laws. Need simplicity and consistency.

Definite safe harbors allows easy determination for the non-lawyer, and provides protection from big media making big claims over de minimis issues.

Also makes DMCA takedown notices easier to manage. Only substantially infringing material will be subject to a notice, and makes it easier for an artist to defend potentially infringing work.

YouTube as “Fair Use” Arbitrator?Yuan-Chuan Chen

Q: How does YouTube currently resolve disputes between a copyright holder and someone who says their video is fair use?

A: YouTube’s Policy on disputes of fair use: “Unfortunately we cannot make a determination whether your

video qualifies as fair use. If you disagree with a copyright takedown notice that you have received, you may file a counter-notification. However, we cannot offer you legal advice in these matters. If you have questions about your situation, we suggest you consult legal counsel.”

http://www.google.com/support/youtube Q: Should YouTube have the requirement to conduct their

own fair use analysis if there’s a dispute about whether a video should be posted online?

A: No. The fair use analysis is quite subjective and complex. YouTube is not an arbitrator. Such analysis may raise another issue: the First Amendment.

Copyright Office Determines “F.U.”Jaekweon Seo

1. Codifying this rule to DMCA? - No, because 107 is general rule, not for specific case - Too much burden for legitimate copyright holder

2. Alternative: Adding this to 107

- Giving burden to legitimate holder is not reasonable • 512(c)(3) is enough - Court can have professional agency's opinion - Can still its discretion

Copyright Office shall make the legal opinion on fair use by request from the courts, and Court may refer to this opinion for decision

Mandated a copyright holder to conduct a fair use analysis before sending a take-down notice to YouTube

Free Distribution Does Help the ArtistsVikran Duangmanee

An artist can get their work into the public sphere of interest easily with potentially minimum business overhead.

It allows audiences to discover new work to which they might not have otherwise been exposed.

People can connect to artists directly though medium of social bonding.

Money comes from selling copies. Independent artists can PR themselves YouTube earns money from advertisements

http://youtube/Kf5pY912-Pg shttp://www.prweb.com/releases/2010/03/prweb3749954.htm Sita Sings the

BluesBy Nina Paley

Artists Deserve RoyaltiesJohn Gregory

Artists do benefit from FREE YouTube distribution. However, artists deserve a small percentage of the

revenue YouTube derives from selling online advertisements. Without the artists, there is no YouTube!

The royalty structure can be based on number of views. Congress or a coalition of ‘interested’ parties can set royalty-

rate. Ex) A few cents per view. Organized in a manner similar to music publisher royalties

under ASCAP. A non-governmental organization will run. Opt-in system. One-time or small contributor’s royalties can go into an arts

education fund.

Uniform International Rule?Sunhee Ahn

Q: Should there be uniform international rules regarding how YouTube issues are resolved?

Prior to amendment for international treaties such as WCT*(WIPO Copyright Treaty,1996) for artists rights

Reflection of digital agenda as special agreement of the Berne Convention.

Clarification of basic standards about the scope of ISP technology, rights and liability among countries.

Alternatively, the increase of consensus and cooperation through international artists associations.

Encourage Creative Commons LicenseJeonggyu Kim

If there are no improvement in current laws, artists should use “creative commons” licenses.

Provides an Easy Way for Artists or Individual to Control their IP without Needing a huge array of Lawyers.

Easy to Understand What One Can Use and Can not Use.

Give the Artist Increasing Opportunities to Use Other Artist’s Work.

Reasonable Infringement PenaltiesChangkwon Kim

In a civil suit, an infringer may be liable for a copyright owner's actual damages plus any profits made from the infringement or a statutory damage recovery of up to $150,000. (17 U.S.C. 504) .

Violation of copyright law is also considered a federal crime when done willfully with an intent to profit. Criminal penalties include up to ten years imprisonment as well as fine. (No Electronic Theft Act, 18 U.S.C. 2319).

In the context of monetary means of copyright deterrence, civil suit against those who upload on YouTube is not that efficient. It may have some utility as a tool for frightening inveterate

infringer, or for the warning effect for general public. But civil suit takes time until gaining the result, and costly.– and especially when defendant is also artist, it is not a good picture.

Reasonable Infringement PenaltiesChangkwon Kim

Asking Google to submit certain amount of advertisement revenue for indemnification would be practical way.

Criminal penalty will surely have chilling effect on general public, because its damage to individual infringer is much greater than civil penalty, especially in case of imprisonment.

But this means should be confined for the purpose of showcase effect aiming habitual infringers, because too excessive criminal penalty imposition may shrink new art creation and inflict negative image on the group of artists.

Artists’ & YouTube’s Shared InterestsChris Hurley

Artists’ input is key to future success of YouTube.

YouTube’s future success and direction is crucial to artists going forward.

Artists’ representation on YouTube’s Board will help align incentives and direction.

3 main flavors:

Board of Directors

Pros: Artists would get unfiltered access to all relevant

information and decision making. BOD is “nerve center” of the corporation, and so

this is the place to have biggest impact. Cons:

By being on BOD, Artists’ representative would have a fiduciary duty to do what’s best for corporation and all shareholders– not just artists.

Artists’ representative would not be able to control BOD vote- just a minority of BOD.

Also, conflicts of interest may require recusal.

Non-Voting Observer on Board

Pros: Artists would get unfiltered access to all

relevant information and decision making. BOD is “nerve center” of the corporation, and

so this is the place to have biggest impact. No fiduciary duty as a mere observer (but may

be bound by confidentiality obligations). Observer can represent solely Artists’ interests.

Fewer conflicts of interest. Cons:

No actual Board vote.

Board of Advisors

Pros: No fiduciary duty owed– thus Artists’

representative could solely represent Artists.

Fewer conflicts of interest– fewer procedural problems.

Cons: Artists information would be more filtered

than at BOD. BOA is NOT the “nerve center” of the

corporation, and so this may just be window dressing?

Conclusion

Overall, we hope some of these recommendations can lead to a strong and profitable partnership between artists and distribution channels like YouTube.

The artist coalition is willing to engage all interested parties in a dialog in hopes of meeting shared interests and attaining mutual goals.

Your comments are welcome.