Either plagiarism efforts and voluntary initiatives solve, or alt causes overwhelm.

examining moral rights in the united states,” U.S. Copyright Office, April, Available Online at https://www.copyright.gov/policy/moralrights/full-report.pdf, Accessed 07-13-2024) JM

Other Forms of Private Ordering

a) Plagiarism

Attribution is a long held fundamental norm in American society, one whose importance is instilled from a young age through an emphasis in education systems on proper attribution and citation.784 Some argue that such social and professional norms may do better to regulate attribution than any legal or statutory means, given the highly contextual nature of attribution requirements.785 While a norms-based approach to plagiarism may not be legally enforceable, a violation of these norms may carry serious consequences.786 An act of plagiarism can result in a range of penalties including suspension or expulsion, firing, loss of tenure or revocation of a license, not to mention the reputational harm that can occur from a mere allegation of plagiarism.787

Such policies and norms concerning plagiarism can differ greatly across institutions and types of media. For instance, as discussed above, the film and television industry has a highly structured attribution system whereby guilds representing the various contributors to a work negotiate legally enforceable credit rights with production companies.788 Other sectors, such as academia and journalism utilize a less formal, more norms-based approach to attribution.789

Plagiarism policies and norms can also vary within industries. In academia, for example, attribution norms for multi-author works with large-scale collaborations, such as are common in scientific fields, tend to be more formal.790 Attribution norms can also vary depending on the medium used. For instance, radio or podcast journalism tend to have less stringent norms governing attribution than print or even television journalism, as giving attribution to every contributor on air may not be practical.791 Similarly, in the art world, plagiarism and attribution norms can vary greatly depending on the medium and type of work, and these norms continue to evolve as new art forms emerge. While appropriation in art is nothing new,792 as more extreme styles of appropriation art, such as those employed by Richard Prince and Jeff Koons, become normalized, perceptions of what it means to plagiarize another artist’s work in the context of modern art are shifting.793

Thus, attribution tends to happen in large part due to the professional or societal consequences, rather than any legal consequences, of plagiarism. Norms regarding attribution and what it means to plagiarize have the advantage of being flexible and adaptable as technologies develop and new means of creating and distributing art and media emerge. The downside to such norms-based rules is that their very flexibility can result in inconsistent application, both across time and even within a given field. Still, it is unclear whether institutions or fields lacking more formal and longstanding policies and procedures regarding plagiarism would benefit from a statutory attribution right which could standardize these requirements. Any such right would, of course, need to account for the differences in attribution standards across different industries, professions, and modes of creative expression.

b) Voluntary Initiatives

In conjunction with legal and regulatory means of enforcing the rights to attribution and integrity, voluntary initiatives and private ordering also work to secure these rights for authors. In addition to the systems that have developed around plagiarism, many sectors are developing their own systems of attribution and industry norms that work to ensure proper attribution for creators without the use of formalized legal regimes. Similarly, many sectors are also pursuing voluntary initiatives to help fill some of the gaps left by the moral rights patchwork in the United States.

Often, these voluntary initiatives are developed by companies looking to solve problems with content management in their respective industries. Over the past decade, such initiatives have become more common as creative industries grapple with maintaining effective means of providing attribution and preventing unlicensed uses in the digital age. For instance, in 2007, YouTube launched Content ID, one of the first large-scale content management systems.794 The Content ID system scans user-uploaded videos on YouTube against a database of files that have been submitted by rights holders participating in the program. 795 Once a match has been identified, rights holders can then choose to block the video, monetize the video by running ads against it, or track the video’s viewership statistics.796 Similar digital fingerprinting technologies are being employed by other content platforms, typically in attempts to combat online piracy.797 However, these content management technologies also help to combat misattribution, as well as alerting authors to instances where their work is being used without attribution. Additionally, by flagging unlicensed uses, these technologies can allow authors to assert their right of integrity by preventing or disabling uses of their work that modify or distort their original expression.

Several companies have also created their own content management databases in order to effectively match creative works to their author and/or rights holders. In 2016, SoundExchange launched its International Standard Recording Code (“ISRC”) Search Site.798 Unique ISRC’s are used to identify sound recordings.799 The ISRC Search Site provides users with access to SoundExchange’s sound recording metadata linked to the ISRC identifier.800 While this data was previously available through other sources, SoundExchange’s creation of a single comprehensive online database allows more accessibility for artists, rights holders, digital music providers, and listeners to accurately identify sound recordings and locate their related metadata.

Similarly, in addition to their “Content ID” management system, YouTube also recently adopted the International Standard Name Identifier (“ISNI”) standard number for artists and songwriters.801 ISNI’s are unique numbers used to identify the different creators associated with a work.802 As a registration agency for ISNI, YouTube will request an identifier be assigned to all creators, including both performers and authors, whose works are uploaded to the platform.803 By adopting ISNI, YouTube is attempting to simplify the often complex process of associating a work with its author or rights owner. The adoption of one standard identifier across the platform will hopefully allow for more accurate attribution for creators.

Another voluntary initiative working towards ensuring proper attribution and permissible uses for authors is the Picture Licensing Universal System (“PLUS”) Registry. The PLUS Registry is run by the non-profit PLUS Coalition whose mission is to “facilitate the communication and management of image rights.”804 The Registry currently assigns a unique identifier to each creator, rights holder, distributor, licensor, and licensee, and in the future it will allow users to assign unique identifiers to images and manage the information and metadata associated with each image.805 Importantly, the PLUS Registry also tracks and allows users to update the rights information associated with an image, including current contact information for related creators, rightsholders, and institutions.806 This allows users to more easily track down rights holders in order to gain permission for a use or to properly attribute a work.

Companies are also utilizing new technologies, such as blockchain, to develop content management systems. Kodak has partnered with WENN Digital to launch KODAKOne, an image rights management platform.807 KODAKOne is based on an encrypted, digital ledger of rights ownership, which photographers can use to manage rights information, receive payment for licensing their works on the platform, and sell their work on a secure blockchain platform.808 Similar to YouTube’s Content ID, KODAKOne also provides continual web crawling to monitor uses of images registered in the KODAKOne system.809 When an unlicensed use is detected, KODAKOne will offer infringers an easy payment system to legitimize their uses.810

Along with voluntary initiatives to develop content management and identification systems, voluntary initiatives can also take the form of licensing agreements. For instance, Getty Images and Google have announced the formation of a multiyear global licensing partnership.811 While the agreement allows for Google to use Getty Images’ content in its products and services, the agreement also requires Google to modify its image search function to improve attribution of works.812 Other modifications Google will need to implement under this initiative include making copyright disclaimers more prominent and removing “view image” links to the original image URL.813

While these types of voluntary initiatives may represent a step forward in filling the gaps left by the existing moral rights landscape in the United States, such initiatives cannot offer a comprehensive solution to the problems with attribution and integrity faced across creative industries. These initiatives are limited in applicability to the specific industry or platform at hand, and without formal legal requirements, enforceability is confined to a platform’s internal policies. Moreover, content management technologies―both voluntary and not―raise concerns about the role of automation in policing content platforms. Digital fingerprinting technologies can be prone to error, and automated matching systems cannot take into account permissible uses of copyrighted material such as fair use. The Office supports the on-going use and development of voluntary initiatives, but recognizes the need for the law to supplement and support these systems.