Copyright enforcement in the digital era is tough for rights holders; in particular if you’re the person who produces the material that is deemed to have some form of value online. There’s the ease at which bits and bytes are copied, since that is literally the technological foundation of the Internet.
Wired’s founding editor Kevin Kelly noted:
The internet is the world’s largest copy machine. If something can be copied and it touches the internet, it will be copied. #theinevitable
— Kevin Kelly (@kevin2kelly) April 24, 2016
There are nuances to what Kelly said, but as a creator, you were at a disadvantage when asserting the rights to your work if it was digitised early on. Not a great deal has changed since Kelly said the above. If anything, things have become worse for rights holders.
At Interest.co.nz we’ve experienced first hand what it means to have our writers’ work copied without permission. Whole articles. Stolen if you like. One site that does just that is the Centrist which is backed by billionaire James Grenon who is attempting a board clean out at NZME after obtaining a large shareholding in the media group which publishes The New Zealand Herald.
We don’t wish to be associated with the Centrist in any form. Its editorial direction, if it can be said to have one without paid journalists on the staff, doesn’t align with that of interest.co.nz.
Our publisher David Chaston asked the Centrist's Tameem Barakat to take down our content, along with links to interest.co.nz. Which, as the rights holder, interest.co.nz is entitled to request.
Barakat refused.
“While we respect your perspective, we will continue to link to Interest, as we do with any other site, when we feel it is appropriate and within our rights to do so,” Barakat responded.
As of writing, content from interest.co.nz remains up on the Centrist. New material from interest.co.nz is being added without permission, such as this recent story from interest.co.nz/technology with 180 words plus headline “summarised” by the Centrist.
There is no attribution of who wrote the Centrist “summarised” piece.
Adding insult to injury, the Centrist then appears to claim rights to what it has taken from publications such as interest.co.nz, The Spinoff and Radio New Zealand and published on its own site:
Intellectual Property
All content published and made available on our Site is the property of The Centrist Limited and the Site’s creators. This includes, but is not limited to images, text, logos, documents, downloadable files and anything that contributes to the composition of our Site.”
Ironically, the New Zealand Herald has also had its stories “summarised” by The Centrist.
What can a rights holder do if a site owner refuses to take down content? First, it’s important to consider that New Zealand does not have the American style “Fair Use” provision of copyrighted material. Instead, we have Fair Dealings, and you can read more about that here.
The longer story is that while Fair Dealings allows some use of copyrighted material under specific conditions and with the rights holder’s permission, it’s not a help-yourself-to-content carte blanche at all.
Checking in with Copyright Licensing New Zealand on whether or not the publication of “summarised” original content is allowed under our Fair Dealings provisions, its chief executive Sam Irvine didn’t mince words:
“It’s totally illegal,” Irvine said.
Rights holders can apply to the Copyright Tribunal but nutting it out at that legal level is not an option if they don’t have deep pockets.
“You are right that the Copyright Tribunal is the next place but that is, or can be, expensive,” Irvine pointed out.
This isn’t a great situation as creators who have their material used without permission will be discouraged from producing anything new of course. The whole point of copyright statutes is to encourage creation of new material. Creators can also relinquish rights by using, for example, Creative Commons (CC) licenses which set out the conditions under which that is done.
What can be done here? Irvine said there are proposals to make it easier to stop content purloining.
“What we have been asking the minister [Paul Goldsmith] for is a way that people whose work and property rights are being used illegally, without permission or any compensation or acknowledgement, can get a ruling against the infringing party,” Irvine said.
“We think an effective enforcement regime should be part of the Copyright Act review that may be happening this year,” he added.
“Australia is looking at the enforcement issue right now, that is, a lower court or mediation, where you could take an infringement to for a ruling,” Irvine said.
Irvine thinks we should just follow Australia’s Copyright Enforcement Review in New Zealand.
Where copyright becomes even more salient is when material is used by artificial intelligence companies to train the technology: Irvine called it “the biggest heist in corporate history”.
Microsoft-backed OpenAI has been the target of copyright infringement legal action, with news media alleging the company used millions of their stories for AI model training illegally.
So far, the results have not been encouraging for rights holders. In November last year, a US federal judge dismissed the news publishers’ claims, deeming they could not show sufficient harm by OpenAI.
It could get worse. Irvine said a recent government proposal in Britain would allow AI companies to train models on copyrighted material by default. That is, without seeking explicit permission or licenses from copyright holders.
The only redress for rights holders would be to request to opt out of their material being used for the training, but that seems quite feeble and impractical in practice as nobody knows if and when their material is about to be used.
So far, the government proposal was voted down as it stood in January this year, with amendments added requiring that generative AI (GenAI) companies selling their products in the UK to lawfully licence any copyrighted training data used, giving creators explicit rights and control to decide whether their material can be used for that purpose.
The amendments passed the Lords but still have to go through the House of Commons.
Needless to say, the government proposals have gone down badly with publishers, musicians and creative industries which bring in hundreds of billions in revenue annually.
It’s worth remembering that GenAI is becoming good enough to create works such as creative writing, music and video that’s nearly indistinguishable from the original material it was trained upon. It includes art, copying people's voices and music, for example.
If that comes to pass, it stands to make creative industries go out of business and extinguish them, in which case AI companies would no longer have access to fresh human-generated training data. It seems unlikely that anyone would want that situation to come true.
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