Imagine a future where news agencies, historical archives, academic resources, and humanitarian organizations across the world all receive the same US Digital Millennium Copyright Act (DMCA) notice, sent by a Chinese firm: Take down the Tank Man photo, or be sued for copyright infringement.
There is perhaps no better-known image associated with the 1989 Tiananmen Square massacre: an unknown man in a white shirt and black trousers, grasping a bag in one hand, stands in front of a line of tanks, halting their progress.
Tank Man is a subversive image for the Chinese government, and for internet users in that the country, the photo—like many other references to the 1989 protests—has been censored by the authorities. It would be insanity if copyright were used to expand that censorship beyond China's borders, but thanks to the United States copyright lobby, this absurd hypothetical is a little more realistic than you'd expect.
There's more than one photograph of Tank Man, but for such a long, momentous stand-off, the photographs are surprisingly few. At least one of these photographs now belongs to Visual China Group, which purchased it from none other than Bill Gates himself, included inside of a massive bundle of copyrights to "historic news, documentary, and artistic images" that includes images of the Tiananmen Square protests.
Visual China Group has announced a partnership with Getty to license the images, so censorship doesn't look like it's in the cards. But while predicting the future behavior of a Chinese conglomerate is rather difficult, it's not an entirely implausible scenario; in 2015, Buzzfeed UK proved that the Ecuadorian government had been using the DMCA—through a third party firm—to censor criticism on the internet. The policies that the United States has encouraged across the globe have led to an absurd outcome, where repressive governments can put pressure on a company to censor—under United States law!—politically sensitive images.
The United States has consistently pushed for DMCA-style notice-and-takedown in countries that don't currently implement similar systems
As owners of the copyright to the photo, Visual China Group could easily launch a massive censorship campaign across the internet. The group only needs to send a notice under the DMCA to upstream service providers that host the Tank Man photo—Google, Wordpress, Amazon Web Services, Wikimedia, Facebook. If a DMCA notice is valid, a service is required by the law to take down infringing content—or else it can become liable for copyright infringement.
Although fair use could cover use of the photo, thus giving a service provider an excuse not to honor the DMCA notice, that's by no means a certain defense. See, for example, Fox News' legal troubles over a copyrighted photograph of firefighters on September 11th—although the news organization cited fair use, a judge denied its motion for summary judgment on the issue, and Fox News ultimately settled the issue out of court.
The hypothetical censorship of Tank Man feels more outrageous, and that would likely aid news organizations in a lawsuit. Journalistic usage of the Tank Man's photos—which persist in newsworthiness and historical value for the public—should be obviously covered under fair use, but the actual copyright analysis isn't much different from the Fox News lawsuit. And if that's the case, perhaps copyright law is broken.
The United States has, for decades, pushed for more restrictive copyright laws both at home and abroad. The latest example is the Trans-Pacific Partnership Agreement, which contains intellectual property provisions that echo earlier trade agreements like the Korea-US Free Trade Agreement.
The United States has consistently pushed for DMCA-style notice-and-takedown in countries that don't currently implement similar systems, and a leaked chapter from October 2015 showed that the language of the TPP at the time required internet service providers to block infringing sites.
The TPP was forged under the Obama administration, and the White House has made it clear that approving the agreement is a priority for the president. "With TPP, China doesn't set the rules in that region, we do," the president said in his latest State of the Union address. "You want to show our strength in this century? Approve this agreement. Give us the tools to enforce it."
Leading candidates in the current election have shown disapproval towards the TPP, but for years, American foreign policy has sought to ratchet up copyright law internationally. In 2012, Mitt Romney sought to paint Obama as soft on China, claiming that he would be even tougher with intellectual property "theft" than the president. "…I will go after [China] for stealing our intellectual property. And they will recognize that if they cheat, there is a price to pay."
The overly powerful, unbalanced intellectual property restrictions that the American government has championed hang like the sword of Damocles. It's all well and good to talk about how we need to ratify the TPP when China is "stealing our intellectual property," but what happens when American news organizations and archivists are accused of stealing China's intellectual property, by persisting in publishing images of Tiananmen Square?