With the growing reach of social media and content sharing platforms (e.g. YouTube, Facebook, Twitter and Instagram), creatives and influencers are able to distribute content more effectively and to a far wider audience than ever before.
However, the convenience and freedom afforded to their modern-day audience to share digital content at the press of a button (or touch of a screen) is making it harder for creatives to enforce their intellectual property rights (“IP”).
Having been raised in a society where digital content is available on demand, younger generations now appear to attribute less importance to the interests of creatives and their IP rights.
An EUIPO study conducted in 2016 found that, when asked whether they had “accessed or downloaded or streamed content from illegal online sources intentionally”, 27% of 15-24 year olds admitted they had (in comparison with an average of 10% across the total EU population surveyed).
A similar study commissioned by the UK IPO (published in March 2018) found that an average of 25% of people surveyed across all age groups surveyed admitted to conducting illegal infringement activities online, with the 16-24 age group having the highest percentage (coming in at over 30%).
The nature of content sharing platforms makes it ever more difficult for content creators to effectively enforce their IP rights against infringers.
In many cases, infringers are afforded a certain level of anonymity, with it proving very difficult to identify individuals posting infringing content. Sharing platforms operate their own takedown mechanisms (allowing rights holders to file complaints and request that infringing content is removed, or that repeat infringing accounts are banned), but this often results in the infringer either re-uploading the infringing content and/or simply creating a new account.
The speed and frequency at which infringing content propagates also makes online sharing platforms impossible to police effectively. Within minutes, content can be copied and shared with tens of thousands of users. Effective control over this level of activity requires a level of vigilance that many IP rights holders cannot maintain, either for logistical or financial reasons (as many smaller creatives are unable to incur the costs of maintaining legal support to fight against large scale infringements).
Attempts have been made to reform the law and enforcement processes employed to counter these difficulties.
In 2016, the UK IPO released a four year “road map”, setting out key objectives and strategic aims for IP legal and logistical reforms. We have since seen the introduction of the Digital Economy Act 2017 (implementing a number of reforms to IP legislation, including an increase in the maximum sentence for “communicating copyright works to the public” from two years to ten years), and the introduction of a voluntary “Code of Practice” entered into by Search Engine providers dedicated to the removal of links to infringing content from the first page of search results.
However, many of the changes made to date are clearly intended to deter large scale infringers who target well-established and instantly recognisable brands. It is clear that greater support needs to be put in place to protect the rights of smaller creatives and tackle the problems posed by social media platforms.
Perhaps the most controversial pending legislative reform comes in the form of the EU’s proposed “Directive on Copyright in the Digital Single Market 2016/0280”.
Whilst intended to protect IP rightsholders, the growing concern is its introduction could end up being damaging to the creative industry.
If the European Parliament has its way, Article 13 (informally referred to as the “meme ban”), which will require sharing service providers to conclude “fair and appropriate licensing agreements with rights holders” which make them liable for infringing acts of the users of their platforms (e.g. if a user uploaded a copy of a photograph to Instagram, the latter would need to compensate the IP rights holder in respect of the use of the photograph). This may force service providers to adopt stricter content filtering, inadvertently resulting in perfectly legal works being removed (e.g. “memes”, created by making small modifications to third party owned images often without permission, may be caught by these new provisions, despite in many cases appearing to fall within the “parody” exceptions to copyright infringement law).
The Copyright Directive has not yet been approved, and its current form continues to face strong objection. It is also unclear how its introduction would directly affect UK-based creatives, given the imminence of “Brexit”. However, given the global reach of the internet and social media, it is clear that the development of the Directive will have a significant impact on all content creators, whether based in the UK or not.
Daniel Cahill is a Chartered Trade Mark Attorney at Ashfords Solicitors
