Is it time to look at monetisation as a new exclusive right of the author?

The first experience that most modern creators will have of copyright is through social media, and particularly through YouTube. In the early days of the network, YouTube had the reputation that it was mostly built on infringing content, users would upload video clips and sometimes entire shows without permission, and copyright owners would attempt to play a game of Whack-a-mole with infringing content. This culminated in the copyright infringement lawsuit of Viacom v YouTube.

But the litigation was the exception to the rule, for the most part YouTube was safe thanks to limitation of liability contained in legislation such as the DMCA and the E-commerce Directive, and as long as it removed content promptly once notified, it was safe.

But YouTube not only relied on safe harbours, it took proactive steps to remove content using automated systems. This came in the shape of ContentID, a digital fingerprinting system which allowed copyright owners to flag specific content as their own, and YouTube’s system would match and identify infringing content to that contained in their database. But what made the system very useful was that it allowed owners to decide what to do with infringing content, they had the chance to ask for their removal, but they could also gain monetisation benefits that would have otherwise gone to the infringer.

Undoubtedly, ContentID has been a success, and it may have inspired efforts to impose similar filtering by law contained in the DSM Directive. But the digital fingerprint has had another interesting effect, YouTube became one of the world’s most prominent copyright enforcers. For an entire generation of creators, their first experience with copyright won’t be in a court of law, but through YouTube. Having your content flagged for copyright infringement is a palpable and real threat, and as a result YouTubers have become cognisant of exceptions such as quotation, criticism, parody, and fair use in general.

Once flagged for copyright infringement, YouTube is also judge, jury and executioner, and with few exceptions their decisions are final and will not be reviewed in a court of law, furthering YouTube’s important modern role.

With this in mind, another YouTube native concept has become prominent in content creator’s minds, and it is that of monetisation. YouTube shares some of its profits with content creators in a manner that is known as monetisation, this usually means that the YouTuber receives a share of the profits that come from advertising displayed with their videos. The system involves a calculation between the number of views, the number of subscribers a channel has, and the number of ads that have been shown in the video. While the numbers involved tend to be small, particularly for minor channels with few subscribers, for many this is can be a considerable revenue stream. For more popular content creators, YouTube monetisation is just a small part of their revenue, they use crowdfunding sites such as Patreon, and in some cases they may even get sponsors independent from the YouTube ad structure.

But the threat of removing the monetisation stream is real. There are various reasons why a channel can be demonetised, but one of the easiest is copyright infringement. Infringers could see one video demonetised, and repeating offenders could have their channels demonetised, and in some instances, cancelled.

For the most part the system works as intended, but there are growing concerns that YouTube may be using demonetisation with intentions that go beyond what they were initially conceived for. Firstly, there are stories of channels that have been demonetised with little evidence of infringement. Similarly, some YouTubers will use copyright complaints in order to shut down criticism, or to stop their rivals in contentious political or social issues. And finally, YouTube has been demonetising specific channels dealing with controversial issues, be them flat earth, gender, and some extreme political content.

This brings me to the current proposal, and it is that maybe we could start thinking of adding monetisation as an exclusive right of the author, just like copying, publishing, adapting, or making the work available to the public. The justification for this is that we are talking about a medium in which the existing rights of the author are no longer important, and the only thing that creators care about is monetisation. And as evidenced above, this is at the moment in complete control of the platform, and they can pretty much do what they please.So why shouldn’t we consider to empower users with an exclusive right that it actually relevant to them?

A right to monetisation would allow creators to have more control over their content, and it would help in having more balance with large platforms such as Google. It is also a logical progression of rights that are relevant to social media users, where copying and sharing content are not as relevant. But commercial use, and particularly monetisation of content by another creator, would be more relevant.

It is important to note that this new right would be separate from the right to remuneration that exists in many jurisdictions, and which is mostly a right given to performers. The right to monetisation would not be a right to remuneration, which would still be separate, but it would be specifically an exclusive right to monetise one’s work. This has two effects: a platform cannot deprive a creator of monetisation; and similarly the owner can exclude others from monetising their work without their permission.

Would this right have an effect on the wider copyright landscape? I don’t think so, monetisation is already an important element of some of the exclusive rights of the author, albeit one that is not always expressed in this way. For commercially viable works, when someone wants to lawfully publish or copy the work, they must pay. In many ways, commercial use is also built-in enforcement in the shape of damages, and many defences rely on non-commercial use of the work. So what this right would do is to give a right to creators to be able to gain control of an important part of their work. But perhaps most importantly, this would not create new rights for copyright owners who are already monetising their work, but perhaps would make it easy for them to go after infringers who are also monetising their work in manners that could not fall easily under the existing rights.

I am sure some will argue that we don’t need new exclusive rights, we already have difficulty enforcing the ones we have. My argument is that this would be directed almost specifically at new media environments, particularly social media and user generated content. Otherwise copyright could be losing yet another generation, becoming more irrelevant to large numbers of creators.

Credit: Thanks to the students of the Grupo de Estudos de Direito Autoral e Industrial – GEDAI/UFPR in Curitiba, Brazil. I got the idea to finally write the blog post after interesting conversations with Pedro de Perdigão Lana, Alice Lana, and Lukas Ruthes Gonçalves.