Social uses

10.98 Uploading a copyrighted song or video clip to YouTube or Facebook is not a private use. Whether or not such uses should sometimes be considered fair, these uses are clearly not private and so will not be captured by the fair use illustrative purpose for ‘non-commercial private use’ recommended in this Report.

10.99 Some social uses of copyright material would be fair use. However, sharing content outside the domestic sphere is less likely to be fair—particularly if the use is not transformative and harms a market that rights holders should be entitled to exploit. For this reason, the ALRC does not recommend that ‘social uses’ be included as an illustrative purpose for fair use.

10.100 Many online uses of copyright material are not transformative, and some are clearly not fair. Arguably the ‘sharing’ of copyright content that is most unfair and causes the greatest damage to rights holders is the use of peer-to-peer file sharing networks, digital lockers and other means to exchange entire films, television programs, music and ebooks.

10.101 Many submissions stressed that some so-called ‘social’ uses of copyright material must not be confused with true private uses. The Music Council of Australia said that a ‘clear distinction must be drawn between burning a compilation CD at home to play on the kitchen stereo, on the one hand, and disseminating to 800 “friends” via social media such as Facebook’.[78] Cricket Australia submitted:

The use of content on social media (such as Facebook and Twitter) or online sharing sites (such as YouTube) cannot properly be classified as ‘private and domestic’ where the content can be viewed by a large number of people (and in many cases all users of the internet) and monetised either by the uploader or site operator.[79]

10.102 Many users will not understand or recognise the difference between private and social uses, some stakeholders suggested. ARIA submitted that, in its experience, ‘uses that an individual may consider to be of a ‘private’ or ‘domestic’ nature are now routinely uploaded to online services which make the content available globally and underpin very profitable commercial businesses’.[80]

10.103 However, many other social uses of copyright material—for example, creating certain user-generated content[81]—are arguably less harmful and now commonplace. These may even include uses that are unlicensed, not transformative, and feature on commercial platforms.

10.104 Existing exceptions, such as the fair dealing for parody or satire exception,[82] may apply to some user-generated content that uses copyright material. However, much user-generated content will not be covered by these existing exceptions—for example, using a copyright sound recording in a home video.

10.105 Jeff Lynn, chairman of the UK Coalition for a Digital Economy has written that this ‘incidental’ sort of copyright infringement is ‘part and parcel of using the internet and participating in innovation’:

It is simply impossible to confirm the rights to every image, block of text or sound clip that one shares with friends on Facebook or incorporates into a home video to send to the grandparents.[83]

10.106 Further, Lynn writes that ‘while this sort of copying may not always be innovative itself, its inextricable link with the highly innovative activities associated with internet use means that quashing it results in quashing a lot of collateral good’:

[A]ny hypothetical loss [to rights holders] from the failure of a handful of people to buy a licence to a given work shared casually among a small network is not only negligible but it is almost certainly outweighed by the discovery advantages.[84]

10.107 Individuals who upload copyright material onto social websites—such as YouTube—are not often the subject of legal action by rights holders. The ALRC understands that rights holders increasingly work with internet platforms to manage content by other means. For example, in the case of YouTube, rights holders may choose to ‘monetize, block or track’ the use of their content.[85]

10.108 The ALRC agrees with the Copyright Council Expert Group’s observation that user-generated content ‘reflects a full spectrum of creative and non-creative re-uses’ and should not automatically qualify for protection under any proposed exception aimed at fostering innovation and creativity.[86]

10.109 Social uses of copyright material are best considered on a case-by-case basis, applying the fair use exception. It is doubtful that attempting to prescribe types of social uses that should not infringe copyright would be beneficial. Attempts to distinguish between types of user-generated content without using general fairness principles seem unlikely to be successful.

[78] Music Council of Australia, Submission 269.

[79] Cricket Australia, Submission 700. See also Arts Law Centre of Australia, Submission 706: ‘from the perspective of the artist or creator of the copyright work, it may be one thing to create a family video that incorporates a copyrighted song and share that video with family by email ... However, it is another to put such a video on a social networking site.’ COMPPS, Submission 634: ‘in the digital environment, many online services used by individuals are both public and commercial’.

[80] ARIA, Submission 731. See also Arts Law Centre of Australia, Submission 706; Cricket Australia, Submission 700; APRA/AMCOS, Submission 664.

[81] Content made publicly available over the internet, which ‘reflects a certain amount of creative effort’ and is ‘created outside of professional routines and practices’. User-generated content includes, for example, audio-visual excerpts from copyright material, such as movies or music, perhaps associated with commentary by the individual: Organisation for Economic Co-operation and Development, Participative Web and User-Created Content (2007), 9.

[82] Copyright Act 1968 (Cth) ss 41A, 103AA.

[83] J Lynn, ‘Copyright for Growth’ in I Hargreaves and P Hofheinz (eds), Intellectual Property and Innovation: A Framework for 21st Century Growth and Jobs (2012) 15, 15.

[84] Ibid, 15.

[85] YouTube, Content ID <www.youtube.com/t/contentid> at 24 July 2012.

[86] Copyright Council Expert Group, Directions in Copyright Reform in Australia (2011), 2.