Key Insights on Copyright Trolling in the Application of Creative Commons Licenses by Daphne Ekpe

#copyrighttrolling #copyrightattribution #DaphneMercyEkpe #CreativeCommonsLicense #IPSERIES #Copyright

Hi IPFRIENDS

Welcome, to this special edition of the #IPSERIES newsletter for the month of september. I am Rita Anwiri Chindah, a legal advisor & consultant on intellectual property, information technology, and arbitration based in Rivers State, Nigeria, and the podcast host of the IPSERIES podcast. I provide updates on trending global issues with an African bias and with forward-looking opportunities.

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Let’s go back to the basics

Copyright as we know protects six eligible works which includes; a literary work, a musical work, an artistic work, a sound recording, a broadcast work and an audiovisual work and depending on the jurisdiction, there are no formality requirement to protect a copyrighted work because from the moment it is created irrespective of its quality and as long as it has been expressed in a tangible or fixed format, it enjoys automtic protection and the full backing of the law.

However, due to the territorial nature of copyright as an intellectual property, some jurisdiction such as Nigeria, do not require any kind of formality to register an eligible work but under section 87(2) of thr Nigerian Copyright Act, it states that a person may to the Nigerian Copyright Commision to register a work that is eligible whereas the United States makes it compulsory and a requirement to register an eligible work before they can sue for copyright infringment and full disclosure if an artificial intelligence (AI) tool was used in the creation of the work all thanks to the “Zarya of the Dawn case”.

The importance of getting a consent, permission and authorization (CPA)

In order to use copyright any of the above listed work, the following would be required pf you’

1. You need to determine the chain of title to get the CPA which can be in form of a license (exclusive or non-exclusive) or assignment or an outright buyout/ sell of the work.

2. You can also use a copyrighted work for non-commercial purpose.

3. If its an open source work, confirm the type of license to deter how the work can be used.

For the purposeof this article, I will focus on the Creative Common license whereby an eligible work can be used, reused but the copyright holder must be attributed.

So what is a “Creative Common license” ?

Due to the nature of this type of license, the formalities ofhaving to have a lawyer sit for the negotiation process is done away with because it is a public license open to be shared with creators based on the terms already set out that anyone who wish to use a copyrighted work can do so without any fear of being sued for copyright violation or infringment.

It is also defined to be a global nonprofit organization that enables sharing and reuse of creativity and knowledge through the provision of free legal tool and depend on the existence of copyright to work usually done in advance.

Benefits of a CC license

• It is advantageous for authors who want to share their work broadly on the internet especially in this digital era where ease of reproduction is rampant.

• It permits the sharing of copyrighted works as well as mashups and derivative works.

• It can help promote a copyright holders commercial value, which will end up benefiting authors if you look at it from the economic right the creator is entitled to.

• Another important benefit of a CC license is that it permits the modification from all rights reserved terms to some rights reserved terms.

• It helps in building technical tools that can help the public search for and use works licensed under the CC licenses and other legal tools as provided.

CC licensing features to take note of

As a result of globalisation and the emerging areas, these are the feauture to consider if you wish to explore a CC license in your work as a creator you see need CPA;

• An attribution which requires that a user gives credit but not in a way that suggests you endorse them or their use.

• A shareAlike which let’s others to copy, distribute, display, perform, and modify your work (consider the impact of moral right for copyright owners), as long as they distribute any modified work on the same

  terms.

• NoDerivs that allows others copy, distribute, display, and perform only original copies of your work.

• NonCommercial allows creators to copy, distribute, display, perform, and (unless you have chosen NoDerivs) modify and use your work for any purpose other than commercially unless they get your permission first.

It is important to state that “Creative Commons is a non-profit organization, and not a licensing entity.

So how does the duration of license terminates?

Simple, when a creator breaches the terms of the license as provided under the “termination clause of 4.0 version” which provides that if a creator fails to comply with th epublic license requirement, then it automatically

What is the connection between copyright trolls and copyright infringment

According to a Michigan Law report, copyright trolls rely on copyright law to allege infringement and threaten major statutory damages upon unsuspecting defendants by litigating the alleged violation. Daphne even stated in her article that when a creator uses a Creative Commons work without following the license terms, it can constitute copyright infringement and lead to the termination of the license.

Copyright troll exploit the naive creator non-compliance with the license through predatory monitoring in order to trigger immediate license enforcement against the user and resulting in overly “litigious licensors, problematic case law, and congesting the courts.” Their sole purpose and existence within the creative space and intellectual property industry is that they are in the market for copyright claims.

Complexity and Rigidity of the Attribution Requirement in CC licenses

Daphne defines “attribution” to be the act of acknowledging a copyright holder's contribution, typically for creative works such as music, literature, film, and photography, in accordance with the conditions of a copyright license. Moreover, the CC license attribution clause makes proviso that requires the following:

• That the creator’s identification and any designated attribution is retained.

• That a copyright notice be included.

• That the user refers to the public license and the disclaimer of warranties and

• That they provide a url or hyperlink to the licensed material, if possible.

With the above mentioned requirement, from the users perspective, there should be an alternative measure to resolve any non-compliance instead of giving room to copyright trolls to exploit and manipulate the court sytem into siding with them on the exclusive right a licensor is meant to enjoy especially now that AI tools are being deployed in creation of a work and on certain platforms.

A Balanced Approach for Both Creators and Users.

Due to the 30 days timeline for a user to get reinstated after their public license was terminated as a result of non-compliance with the terms of the license we would need to take into consideration the incentive structure this has opened up to copyright trolls who’s ego has been slightly bruised. This author proposes a reduction in timeline from 30 days to 7 days for resolving non-compliance to attribute the authorship of the work while still retaining the license rights with a strict dispute resolution policy to help curb exploitation by the creator of the works and stick with the objectives of the CC License.

This now begs the question, what is the negative impact of copyright trolling on CC licenses?

Perhaps the lack a strong defence for the users when reviewing the liability for copyright infringement and also considereing the fair use and fair dealing aspect of the use when one considers the short shelf life for non-compliance to attribute the author.

Best Practices that users and my IPFRIENDS can adopt

According to Lindsey M. Mead and Mikhal Murshak recommended that users carry out the following:

1. Ensure that your rights or permisionm ot use a copyrighted work are consistent with the terms of the CC License especially the attribution requirement.

2. Be proactive in monitoring your webiste and social media for any use or post that may potentially have infringing activities.

3. Always carry out an investigation and due diligence in verifying the chain of title, authorship of the work and the type of license such as the CC License that has been discussed in today’s IPSERIES.

4. Have an intellectual property policy regarding the use of online materials to prevent copyright infringment.

   Wrapping up

At the end of the day this may look like a battle between the exploitation of copyright trolls against the exploitation and commercialization of copyrighted works in relation to ownership interest which may require an updated license terms in line with our present reality with a better enforcement mechanism.

Daphne recommended that creating a new CC license version that does not automatically terminate users’ rights but requires authors to notify users of violations balances the interests of both parties. This is because it ensures that:

• Authors would have a contractual guarantee that users must attribute their work and

• Users would also be given a fair chance to correct any violations before their license rights are terminated.

In conclusion, Daphne highlighted that “given that all versions of CC licenses remain valid even after new ones are introduced, Creative Commons should enhance their marketing efforts and if i might add their awareness policy by incorporated digital trends as this efforts would guide and persuade users to steer clear of older license versions, which could be exploited by copyright trolls for financial benefits.

We need to bear in mind that even though the CC license is an American nonprofit organization that offers free legal tools to help everyone, from individual content creators to large companies and institutions, bear in mind that a copyright troll is waiting based on its own set of incentives which particular claims to enforce and against whom to so enforce them.

To find out more about the issues raised in this newsletter including copyright, the right to attribute an author, intellectual property troll such as the one discussed in today’s IPSERIES, please share this email with your friends and contact groups if you enjoyed reading it. You can also contact me by sending an email to ipseriesinfo@gmail.com.

Thank you for your support and feedback. Stay tuned for more updates on intellectual property from IPSERIES!