Fiesler and Zacher (2021) 2

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1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Fiesler and Zacher (2021)
Title: Copyright’s Chilling Tale of Content Moderation: Understanding the Impact of Takedowns on Non-Infringing Content Creators
Author(s): Fiesler, C, Zacher, C
Year: 2021
Citation: Fiesler, C. & Zacher, C. Copyright’s Chilling Tale of Content Moderation: Understanding the Impact of Takedowns on Non-Infringing Content Creators. Available: https://www.kristelia.com/wp-content/uploads/2021/02/Fiesler-Zacher_Copyrights-Chilling-Tale.pdf (last accessed: 3 June 2021)
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
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About the Data
Data Description: Online Survey with the participation of 2376 people. Data collected in 2017, in collaboration with the Organisation for Transformative Works (OTW), which was responsible for disseminating the survey with questions about fandom participation and copyright-related opinions, knowledge and experiences via social media platforms (e.g., Facebook, Twitter, Tumblr) and mailing lists. The target group was adults who self-identified as part of fandom with some knowledge of copyright. There were also questions about age, gender, location, occupation, level of education, length of fandom participation, and whether they consider themselves as fan creator. All questions were optional.

OTW legal committee was responsible for conducting an initial analysis of the collected data, which covered aspects such as level of fandom involvement, fair use and perceived knowledge of copyright law.

For this study, the authors only considered the answers to questions of the survey related to the DMCA and takedowns. Besides applying discerning descriptive statistics to analyse these answers, they also conducted qualitative analysis in relation to the part of the questions that involved open responses. For this last part, they conducted inductive, open coding on a subset of the data, achieving a consensus on high-level categories to be applied deductively to the remainder data. At the end, they wrote theme memos based on cross-cutting themes across questions and categories, which became their primary themes.

Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • 2017
Funder(s):

Abstract

“User-Generated Content platforms adopt private mechanisms to govern users’ content, expression and behaviour on their platforms, through policy and design options. They decide what is allowed and not allowed on their platforms. Thus, they are also responsible for moderating the content that violates their policies. However, content moderation by UGC platforms, whether conducted by human or algorithm, are often opaque. The purpose of this study is to analyse the impact of content takedowns on content creators who primarily deal in ‘fanworks’. The study specifically examines the impact of takedowns (how they are experienced and responded to) through a large-scale survey of fan creators.”

Main Results of the Study

Main findings:
1. Great part of the participants of the online survey are not familiar with the Digital Millennium Copyright Act (about 75%). Even those who are familiar with the DMCA, could not describe it properly. Regardless their familiarity with the law, most participants consider the DMCA or YouTube’s Content ID as a hurdle to their creativity and legal rights. The authors suggest that one of the main reasons for this attitude is in part due to the opaqueness nature (“black box”) of both the Content ID and the takedown process itself.
2. The authors also point to three specific patters (non-mutually exclusive) they found in the participants’ answers that can have chilling effects on creativity and free speech on YouTube, especially due to a fear of penalty:
a) Policy-based chilling effects: YouTube’s policy around takedowns process, particularly those in which videos are removed automatically via an algorithmic flag, is considered by some participants more favourable for copyright owners. Counter-notice policy is considered “scary”, since most participants are unsure about fair use, and the DMCA demands “good faith belief” from the appellant, besides imputing the risk of penalty for perjury. Even YouTube’s video explaining the counter notification process presents fair use almost as an “impenetrable concept”, emphasizing legal consequences and discouraging e.g. remix.
b) Process-based chilling effects: counter-notice/appealing process is considered confusing, too arduous or pointless, preventing many creators of appealing against a takedown or even refraining from posting e.g., other content on YouTube. Many creators are also unaware that there is the option of appeal to fight a takedown notice. Privacy concerns are one of the reasons why some participants consider the counter-notice process arduous, since the DMCA and even the process of appealing an algorithmic Content ID flag on YouTube require that the appellants disclosure their real names.
c) Fatalistic chilling effects: even those creators who understand the process and are willing to engage with it refrain from fighting against a takedown because they consider it helpless, whether because of the resources required or the power imbalance. For example, according to the authors, many creators consider pointless to fight against an automated decision, especially if you need to hire a lawyer for that. Their findings also suggest that this attitude can be justified both due to some personal or other creators’ experiences with the process over the years, and an inbuilt distrust of big techs’ intentions (e.g., YouTube) along with the assumption that these platforms will always prioritise copyright owners to the detriment of their users.
3) Finally, the authors indicate a possible misuse of the DMCA. This can be related to the fact that it is easy to file a copyright infringement claim, since it does not require “good faith” from the claimant. Some participants’ answers also point to the use of the DMCA takedown process for the purposes of trolling or harassment by third parties that are not the copyright owner.

Policy Implications as Stated By Author

In the last part of the study, which is not finished yet, the authors present some initial ideas about strategies to help with the power imbalance between copyright owners and transformative creators, which is considered one of the main causes for the chilling effects on creativity they identified in their research. From a policy perspective, they mention the U.S. Copyright Office report on Section 512 (2020) and highlight the fact that “transformative creators” and other kinds of Internet content consumers’ opinions were ignored in the report. They say that the report underestimates the extent that improper takedown notices impact users, especially non-infringing creators. Therefore, in order to solve part of the lack of balance in the takedown process, they argue that transformative content creators should be a relevant stakeholder in policy discussions along with OSPs and copyright owners, considering that most of them, especially small creators, rely on the reach of the platforms to share their content and they are directly affected by inaccurate takedowns.


Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
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Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Green-tick.png
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)
Green-tick.png

Datasets

Sample size: 2376
Level of aggregation: Individual
Period of material under study: 2017