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The digital era’s new challenge: industrial-scale violation of creatives’ copyrightSDk Updates

Fri 30 Nov, 2012.

We now know what it’s like to have our copyright violated: the SDk01 feature article by editor Daryl Champion, “Twenty years later: Mapplethorpe, art and politics”, has been copied, altered (to the article’s detriment), and republished on a university-hosted web page by an academic. And not just any academic, but none other than a full professor and head of department.

The university happens to be in America, but it could have been anywhere. There are lessons to be learned here, by us as well as any publisher or self-publisher. But before we go on to the bigger picture we’d like to say a little more about the violation of SomethingDark’s copyright, although we can’t reveal any details while communication with the offenders is ongoing.

We discovered the violation by accident on 4 October: by this point, it had been online for more than a year. It was attached to a course outline as a resource for students enrolled in the course. And, because the hosting site was a university website – a massive and complex site – the copied version of our article was scoring very highly in search results.

We did, of course, carry out an extensive series of test searches and thoroughly documented the results. In many cases, the pirated article scored higher than the SDk original, with unknown consequences for the reputations of our editor and SomethingDark considering the gravely substandard quality of the copy, which was republished without the original’s list of references and footnotes so that direct quotes appeared in the main text devoid of context, explanation and attribution and, in some places, were confused with the author’s own words. The integrity of such in-depth articles goes beyond formalities and technicalities: it is essential to the process of building a reputation for accuracy, quality and reliability. Such a reputation can take years of hard work to establish but only a short time to destroy with the dissemination of patently substandard work.

Strangely, almost perversely, the standing of the original SDk01 article in this case was affirmed by the exemplary company it kept: three other third-party resources by distinguished writers and authorities in their respective fields were copied and posted to the course outline along with ours. Although these other articles were not detrimentally altered to the same extent as the SDk feature, we were able to document easily identifiable errors and crucial omissions in the copying and republishing of two of them, one by a senior faculty member at the Massachusetts Institute of Technology; the other by an internationally renown art critic. MIT, by the way, has been rated the top university in the world this year by QS (this came to our attention via the Guardian, so that’s the source we’ll quote: “The top 200 QS World University Rankings 2012”; in two other major international rankings, MIT came fourth and seventh in the world).

As a result of our lawyer’s communication with the senior administration of the American university involved in our case, all four articles have been removed from the offending course outline, but in the meantime it has occupied us for more than 108 hours thus far, and we do have some expenses to show for it. It has been enormously disruptive. But then, we feel we cannot simply lie down and dismiss the entire episode, and this is why:

With SomethingDark webMagazine we are endeavouring to create an entirely new format for online magazines; it is, to date, a unique and innovative format that is, perhaps, worthy of the title of “new media”. It is very advanced, technically; editorially, we strive to curate a unique mix that is homogenous to each issue and maintains the highest standards of finish and presentation. We also strive to adhere to high ethical standards, including copyright: evidence of this can be seen, for example, in the SDk Resource Directory, where our personal communication with the Robert Mapplethorpe Foundation resulted in official permission to reproduce a copyrighted image to accompany the Foundation’s entry in the directory: even though we only used a thumbnail version of the image, the Foundation vetoed any cropping, demanded full acknowledgement, and insisted on certain wording in the brief directory text (see the SDk Resource Directory).

In short, as a matter of principle, the unauthorised copying and republication of SomethingDark material, whenever and wherever it occurs, stands to undermine everything we are working to achieve. If we allow this to go unchallenged, we, as with any creative people involved in an original endeavour, might as well give up now and go on state welfare. This is why national copyright laws and international copyright agreements exist in the first place. Unfortunately, while the letter of the law reads finely, implementation is usually left to those whose copyright has been violated, and this, as we have discovered, can be a long, involved and potentially expensive commitment.

This brings us to the bigger picture.

An in-depth investigation of copyright law and how to secure the copyright of SDk’s contributors was on our agenda before we discovered the infringement against the article contributed to SDk01 by our own editor. This was the case because the United Kingdom is in the process of changing its copyright law in something of an echo of debates (and legal cases) going on in the United States over copyright issues.

Briefly, the digital era has created an insatiable hunger for mass content: the big content providers simply cannot get enough to churn out day after day to feed the hunger. Even mid-range and small providers are struggling to get new, mostly mediocre or worse, content onto their websites on a daily basis. The UK government, as with the US government, as always, is keen to oblige the corporate world; thus, it is proposed that national copyright law be changed to make it easier for content providers, especially big ones (and new ones waiting in the wings), to legally exploit hitherto untapped reservoirs of digitised creative output.

As we understand it, the scheme as currently proposed will work something like this: a big state-sanctioned national licensing agency, or several smaller agencies, will be charged with managing the output of artists, photographers, writers and other creatives in the form of “extended collective licensing” (ECL) for the mass digitisation of work that is not already in digital form. Creatives will need to actively “opt out” of the system: a register of creatives and their work would come into existence one way or another because the work of those who don’t actively opt out – in effect, register their copyright – will be regarded as fair game for harvesting, digitisation and use.

If, after a search (how thorough a search is an unknown quantity), the identity of copyright holders who have not opted out cannot be ascertained, their work will be categorised as “orphaned” and will be open for exploitation along with the work of those who are known and have not opted out. All creative output will be "opted in" by default, and not opting out of ECL can be the result of a multitude of reasons other than by informed decision to remain opted in (for example, by simple ignorance of the scheme's existence).

Content providers will have easy access to all digitised creative material, for which they will likely have to pay only a (possibly very, possibly insultingly) small fee. The licensing agencies will take their commission and pass the remainder to the copyright owners (if known) in periodical disbursements. The rights holders of "orphaned" works will receive nothing.

Material on the internet, especially material created for and that exists primarily on the internet, presumably, would be treated similarly: it is already digitised and thus saves big content harvesters and providers the initial effort.

We shouldn’t need to emphasise the significance of what is happening with digitised creative endeavour, and the internet, in relation to intellectual property, copyright, and corporate content providers. We are still in the early stages of investigating what it all means, but we’re already in the process of implementing the most robust protection for our contributors that traditional copyright-protection measures and the latest internet-applicable technology can provide. This is part of the development work that has engaged us in preparing for SDk03, which, we promise, will set a new standard for the meaning of webmagazine, both technically and editorially.

In the meantime, for those who are interested in the proposed changes to UK copyright law, we’re happy to share a selection of the material we’ve been grappling with:

The UK government’s hydra of proposals for changes to copyright law, in all their official, upbeat splendour, are available from multiple links at the Intellectual Property Office (IPO) website: Consultation on proposals to change the UK’s copyright system.

However, for those who might wish to cut straight to the head of the Hargreaves Report, we have provided a direct link to it here for download (saving you the task of wading through some of the swamp of government PR and links):

(Download the Hargreaves Report from the IPO site)

And the responses from various bodies representing the interests of creatives – a very small, select sample of responses – are:

Authors’ Licensing and Collecting Society: A response from the Authors’ Licensing & Collecting Society: HM Government Consultation on Copyright March 2012.

Alliance for Intellectual Property: Current Responses.

Creators’ Rights Alliance: Response to government policy statement.

Finally, for a concise, insightful and well-written critique of many of the basic premises and approaches adopted by Ian Hargreaves, a professor of digital economy at Cardiff University and the author of the report that's informing the government's approach to copyright-law reform, here is a piece by Gillian Spraggs for the Action on Authors’ Rights network. It’s oriented to writers, but the most relevant lesson to take from a reading is applicable to all creatives: the attitude and the intentions of the IPO, the government, and the big content providers (some, like the BBC and British Library, are poised to become content providers on the back of proposed changes):

(Download “Hargreaves Review: Extended Collective Licensing and Orphan Works”)

With these leads above, you will be able to cover at least some of the ground we’re covering, so, happy reading...