Copyright, the new media, and me

Progress is unstoppable. Just as the brand new cell phone seems to be one or two "G"s behind network technology from the moment it is purchased, legislators find themselves overwhelmed by the rapid development of the digital age. While some areas of new media are still unregulated Wild West, others struggle with conflicts arising from the application of existing laws to modern problems.

Copyright law is no exception. Its drafters probably didn't have terms like "live streaming" or "creator-supporter interaction" in mind. And the Internet has long been more than just a gallery or store shelf for art or the book trade, for example.

Whether as a mainstay, PR, advertising, or fundraising, creators of all varieties are active on websites like YouTube, Twitch, Instagram, Facebook, Wattpad, Belletristica, Patreon, Kickstarter and GoFundMe, where they can interact with fans, for a variety of reasons. However, this interwoven interaction is more than simple exchange; it leads to supporter participation in the Creators' works in a variety of ways. This can take forms ranging from participation in a live chat, which is then superimposed on the live broadcast image, to an idea for the next photo, to amateur editing of a book on Wattpad.

The problem, however, is:

"If several have created a work together without their shares being separately exploitable, they are co-authors of the work."

- German Copyright Law, §8 UrhG Co-author ¹

After an experiment conducted on Twitch on a whim, where I wrote on a project in two live streams while interacting with viewers, I came across this complication that had been bothering me ever since. What if viewers "prompt" me on something, and I include that? Who is the originator then?

It's a question that quickly extended to interaction on Wattpad and Belletristica. What if someone in a chapter makes a suggestion that you implement?

That it does not stop there quickly became clear: if a major streamer shares the recording of the broadcast as a so-called "video-on-demand (vod)" and generates revenue via AdSense or simply from a sponsorship - can the authors of the chat messages that are also shown and thus have become part of the work thereby then claim co-authorship and, as a consequence, shares in the revenue?

Then - the all-clear.

On the Discord server of the WBS law firm (known through Christian Solmecke) my question was quickly answered by another user (not by the law firm itself). No problem at all, because there would still be the Civil Code:

"The debtor is obliged to perform in such a way as good faith with regard to custom requires."

- German Civil Code, §242 BGB good faith ²

My brow remained furrowed, however. Sure, a streamer on Twitch might say, for example, that you have to expect the live chat to be part of the picture of the live broadcast. In an example of slightly older game, a caller to a live TV show, after all, has no rights to the broadcaster's advertising revenue. But what about VoDs? It is only optional, but not "custom", for streamers to record the broadcast. Don't the same rules apply here then, just as with other works?

A look at the terms and conditions of the various sites did not let me find any regulations regarding copyrights. Wattpad, by the way, did not even have terms and conditions translated into German.³ But even the English regulations were silent on the issue of co-copyright.

The matter gave me no pause - because as an author and aspiring small publisher, I am greatly affected by these things. I couldn't imagine that copyright could really be undermined so easily, which is why I turned to an expert: Prof. Dr. Christian Russ⁴ is a lecturer in the field of copyright and media law at the Johannes Gutenberg University in Mainz and at the Rhein-Main University in Wiesbaden, and is a regular lecturer on press and personality law at events organized by the Frankfurt/Main Bar Association. At the invitation of the German Foreign Office, among others, Russ has given a series of lectures on international copyright law in Damascus, Tallinn, Beirut, Budapest, Istanbul and Tehran in recent years.

Russ:⁵

That's an interesting question you raise. In general, according to the case law of the German Federal Court of Justice:

The creation of joint authorship presupposes a personal intellectual achievement by several persons, which has led to the creation of a unified work in deliberate cooperation in the creation of the work.

However, only the person who has made a creative contribution to the joint work, i.e. who has individually helped to shape the form of the joint work, becomes a co-author. The contribution must therefore itself have the character of a work as a personal intellectual creation and must not be limited to a mere suggestion, assistance or other participation.

The extent of the creative contribution, on the other hand, is not important; in principle, even a minor creative contribution is sufficient to establish co-authorship, provided that it still meets the requirements of a personal intellectual creation.

Kleineberg:

From a purely legal point of view: In the context described above, does §242 BGB offer reliable protection against assertion of claims arising from §8 UrhG?

Russ:

No, if co-authorship has arisen, the resulting claims are not limited via the rules of "good faith."

Kleineberg:

Is Patreon (readers have to pay to get access to Creators' content) legally "safer" compared to Wattpad or Belletristica (readers only have to register for free to get access to all content) because payment creates a different, more conventional dynamic for the application of §242 BGB?

Russ:

Legally, it makes no difference.

Kleineberg:

Since all cases would be considered individually anyway in the event of going to court, the question arises, at what point is there a sufficient level of creation to be able to assume co-authorship at all?

Russ:

As you rightly write, a lot will always depend on the individual case. And there are also cases that one judge would decide one way and another judge another way. Especially the answer to the question, which is quite relevant here, when the "sufficient level of protection" is reached, is often enough counted by the judges on the buttons of their robes...

Kleineberg:

Therefore, I ask for an evaluation of the following examples:

A user of one of the free sites sues for recognition of co-authorship. As justification, he or she states that the author has implemented suggestions in the work that are demonstrably based on comments made by the user in which:

(a) Several spelling errors have been corrected. (Effect on form, not content)

Russ:

No, corrections are not personal intellectual creations.

Kleineberg:

(b) Improved wording of sentences in several places.

Russ:

No, even improved wording is not a personal intellectual creation.

Kleineberg:

(c) Details of the plot or the world were criticized (holes in logic, etc.), which the author had then "patched up".

Russ:

No, even criticism such as an editor would make does not establish personal intellectual creation.

Kleineberg:

(d) details of characters were suggested

Russ:

No, although characters per se are protectable as linguistic works under certain circumstances, the stakes are high for this (Harry Potter, etc.). Details of characters do not reach the level of protection required for this.

Kleineberg:

(e) Complete characters have been proposed.

Russ:

Here it will depend very much on the design. After all, it makes a difference whether a secondary character or a main protagonist is added. In general, characters can be protectable (see above answer to d). However, the respective character must be given a special characterization and must also be formative for the overall work and the plot.

Kleineberg:

(f) ideas were submitted that had a significant effect on the further plot.

Russ:

Yes.

~

In summary, it can therefore be said that as soon as supporters make a substantial contribution that has a significant impact on the work, a sufficient level of protection has been reached and co-authorship has arisen. Although Prof. Dr. Russ was able to clearly deny the smaller examples, the simple "Yes" then seems like a punch in the gut and, like a Pandora's box, opens the gates to a host of follow-up questions.

When does what apply? To whom does what apply? I'm thinking of authors who read over a Wattpad comment that predicted the entire plot. At the time just a joke, but in retrospect black on white evidence for the claim of co-authorship? Streamers overwhelmed with lawsuits from internet trolls for profit sharing because their chat comments were seen on VoD. Bloggers wondering if the comments under their articles could be considered part of the work because they are found on the same URL and are directly, interactively intertwined with the content of the article. The list is long, and as unlikely as it sounds at first, this little loophole in the uncharted territory of digital media and interactive work creation can lead to real problems:

"Anything that can go wrong will go wrong."

- Murphy's Law

And since the Internet is dark and full of terrors, don't take your chances.

What's left to do?

For my part, I regularly email myself all writing-related data in a compressed file. If I ever need to prove that I really had an idea independent of comments, I can do that relatively easily with this. How well this works in practice I can't know, but to stop using all the sites and their possibilities is out of the question: On the one hand it would be a bitter loss, on the other hand it wouldn't do any good anyway, because whoever would want to, could just write an email or a letter, suggesting ideas.

Streamers certainly have it a bit harder, because unlike authors, no one has to have had the same idea first. Here the question arises: How can the level of creation be assessed? When will the treshold of co-authorship be passed? When the chat has been addressed in the VoD, i.e. when the chat contribution is not just background noise, but has become a direct part of the "plot"? Or even before that?

Since the mills of the legislator grind slowly, there remains a second way in addition to measures for self-protection:

Websites must update their Terms of Service (TOS). A simple addition is enough, formulated here as an example for Twitch, but which can be easily adapted for the respective sites:

"By agreeing to the TOS, users irrevocably allow Creators whose streams they comment on via the chat feature to use the content of the chat postings for royalty-free commercial purposes."

I've already reached out to a few sites about this that are particularly relevant to me:

Patreon's support essentially shrugged their shoulders and declared it to be not their problem, but would be happy if they could help me with anything else.

Belletristica expressed interest and promised to discuss it internally.

I haven't heard back from Wattpad yet.

Twitch is a bit more complicated and requires a detour via a forum, where ideas can be submitted and voted on. I would be happy about support for my submitted proposal. You can find it here.

Beyond that I can only advise to write to the websites yourselves. To become active. In this way maybe close the loophole before Creators can be harmed by this. Maybe share this blog article to at least make others aware of this issue.

M. F. Kleineberg

1) https://www.gesetze-im-internet.de/urhg/__8.html

2) http://www.gesetze-im-internet.de/bgb/__242.html

3) https://policies.wattpad.com/terms (The only accessible version of the GTC as of 04.07.2022)

4) https://www.fuhrmann-wallenfels.de/rechtsanwaelte/prof-dr-christian-russ.html

5) The interview consisted in its original form of an email with all questions, as well as an email with all answers (with kind permission of their publication). In the interest of the reader, the interview was presented in the wording and not changed in meaning, but in dialogue form.