According to several media sources recording artist Prince (a.k.a., formerly known as The Artist Formerly Known As Prince) is prepared to sue YouTube (as well as eBay and Pirate Bay) for copyright infringement of his works.
Prince is not alleging that Youtube is itself infringing on his copyright. Youtube only provides a forum for people to post and view videos electronically. Any user that posts or accesses copyrighted material without authorization would be the copyright infringer. Prince is alleging, however, that Youtube is authorizing the copyright infringement by its users. If the case were to be heard in Canada, surely CCH Canadian Ltd. v. Law Society of Upper Canada [2004] S.C.J. No. 12 would be the case on point.
In CCH the SCC accepted that through the operation of s. 3(1) and 27(1) of the Canada Copyright Act a party could be liable for authorizing infringement by others. However, the SCC set a high standard for authorization of copyright infringement. According to McLachlin CJC: “The court should presume that a person who authorizes an activity does so only insofar as it is in accordance with the law. This presumption could be rebutted if it was shown that a certain relationship or degree of control existed between the alleged authorizer and the persons who committed the copyright infringement” (para. 38).
Despite the high standard, Youtube may indeed have the requisite relationship and/or control alluded to by the SCC. First, Youtube’s entire business model relies on the availability of interesting audio/video clips to generate traffic to its website. Consequently, one could make the argument that the relationship between Youtube and its users is such that Youtube provides the tool for, and profits from, the copyright infringement of others. Second, Youtube may have the power to exert significant control over the content of its website. According to Prince, Youtube is already to screening and eliminating pornographic clips, but is deliberately dragging its feet on screening copyrighted material. Youtube counters with the claim that copyright-screening is more difficult to accomplish, and that its copyright-screening software is forthcoming. Thus both parties dispute the amount of control that Youtube actually has over the content of its website.
But whether or not Prince has a valid case against Youtube seems secondary to the broader issue of the fight to control the dissemination of artistic work in the era of mass distribution through the internet.
Some commentators are critical of Prince’s stance towards sites like Youtube, claiming that he does not understand the power of exposure over the internet. However, in an ironic twist, Prince is arguably at the forefront of harnessing the power of the internet to disseminate his work. After becoming disenchanted with major recording labels and traditional distribution channels in the early 1990’s, Prince has extensively exploited the internet for promotion and distribution of his work. Further, Prince has also dabbled in other alternative distribution methods such as distributing his music for free with the sale of newspapers in the UK.
While at first blush his stance on Youtube may seem to be in opposition to his use of the internet for distribution or his free distribution of music, upon further inspection it may be part of an integrated strategy. Arguably, from the point of view of Prince, the free availability of his work on the internet serves to undermine his efforts to sell over the internet and distribute in creative ways. Further, an artist like Prince is perhaps more affected by infringement over the internet than the typical recording artist who continues to distribute hard copies of music through traditional music channels and does not worry about the details of distribution. Thus Prince may be prepared to use alternative methods to distribute his works, but on his own terms and according to his own calculated strategy.
And so the conundrum of exposure via the internet continues. While some artists may fully embrace the power of the web through sites like Youtube, others may fully embrace the power of the web by excluding exposure on Youtube. Whether Prince has a case against Youtube is perhaps entirely beside the point. The bottom line is that strategies for controlled distribution of artistic works are being subverted. If, as appears to be the case with Prince and other similar artists, the medium of distribution is a part of the message, perhaps that should be the proper subject of copyright under the Copyright Act.
One Response
CCH Canadian Ltd. v. Law Society of Upper Canada expanded the fair dealing defence, framing it as more of a user right. Nevertheless, I agree that even under this more generous pro-user approach, which would make it more difficult for a party to be held liable for authorizing copyright infringement, it is unlikely that YouTube would have a strong defence against Prince’s allegations.
In CCH, the SCC placed some emphasis on the Great Library’s “Access Policy” which clearly stated that photocopying would be done for legitimate purposes and would have to comply with fair dealing requirements. More importantly, that policy was enforced regularly, with the reference librarians exercising discretion to ensure compliance with the stated policy. In contrast, while YouTube’s policy states that unauthorized copyrighted works will be removed, it is doubtful that the policy is strictly enforced. Rather than taking active measures to ensure that copyrighted works are not posted, YouTube asks copyright owners or their representatives to send them notifications of copyright infringement. I highly doubt that the rate of removal of copyrighted works by YouTube matches the rate at which copyrighted materials are posted. The inertia on the part of YouTube to take preventative action has nothing to do with the lack of “copyright-screening software”. Arguably, YouTube knows that their popularity is due to the posting of copyrighted material on their website, but the lucrative advertising revenues generated from heavy internet traffic are just too attractive for it to abide by copyright law.
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