The Wonky Donkey: How Infringement Helped Create A Best Seller... Which Would Be Impossible Under Article 13

from the wonky-infringing-donkey dept

I had missed this story from a couple months back, but reader Kris kindly alerted me to it. It's the story of how a video of a grandmother in Scotland reading a mostly out-of-print children's book to her grandson, and laughing uncontrollably about the book, went viral and turned the book into a total best seller around the world. First, you need to watch the video:

It has over a million and a half views on YouTube, and apparently a huge number on Facebook as well. The book's author, Craig Smith from New Zealand appears to be ecstatic about all of this (as he should be!):

Smith told the Guardian that demand had “gone through the roof” for the picture book since the video of Clark took off: in New Zealand, his publisher is “rushing to print another 50,000 copies, with a view for more”, while The Wonky Donkey is now also being reprinted in the UK. Amazon in the US and the UK has sold out, while used bookseller AbeBooks said that it has sold “hundreds of copies” of The Wonky Donkey in the last week, amid “massive demand” around the world. [....] “The video is gold. Watching Janice read and laugh was just delightful, and like many, her infectious laugh had me laughing too,” said Smith. “I’ve always wondered why sales had not taken off so much in the UK and US, but that looks like that’s about to change.”

According to the Associated Press, the book had sold about 75,000 copies prior to all of this (which isn't bad), though it was mostly in New Zealand and Australia, but had since gone out of print. But now, the publisher, Scholastic, was rushing to print another 600,000 copies.

According to Scholastic, the book had sold about 75,000 copies and was out of print before the video caught on last month. "Before this fall, if you had said 'Wonky Donkey' in my store, no one would have known what you were talking about," said Linda Devlin, owner of Linda's Story Time in Monroe, Connecticut. "Now, it just sells and sells. People see it and say, 'Oh, I have to get that for my grandchildren.'" Scholastic announced Friday that it had ordered another 600,000 copies. Meanwhile, Clark is coming to New York in November for an event at Barnes & Noble.

And, last month the book went to the top of the charts. From out of print to topping the book sale charts in just a couple of weeks is pretty incredible:

The 2009 picture book about a three-legged, one-eyed donkey has sold more than 100,000 copies in the United States this fall, much of that in the past week. According to NPD BookScan, which tracks around 85 percent of the print market, "Wonky Donkey" topped all releases with more than 90,000 copies sold last week, beating out Bob Woodward's "Fear" and Rachel Hollis' "Girl, Wash Your Face," among others.

But... here's the thing. That video is almost certainly copyright infringement. It's a derivative work with the grandmother reading the entire book out loud. Obviously, neither the author nor the publisher mind that this happened. Indeed, they're pretty happy about it. And so this could just be yet another example of where copyright infringement actually ends up helping the copyright holder significantly.

But this is also an excellent example of the massive harm that the EU is about to do with Article 13 and the EU Copyright Directive. Under Article 13, platforms like YouTube and Facebook would be required to block this kind of video or face massive liability. Of course, how these platforms might detect such a video is unclear. There is no form of ContentID that would see that video and know that it was infringing, but it pretty clearly is. But, once the video got so popular, with over a million views and news stories about it, sooner or later the companies would recognize that it was infringing and would be forced to take it down or face crippling liability.

All weekend long, various supporters of Article 13 have been screaming at me on Twitter about how Article 13 won't harm the internet or creators at all, and that's it's really just about "making YouTube pay its fair share." I'm curious how they could possibly explain what to do in this particular case. Under the law they want, a content creator (and tons of happy parents) would be at a loss. This book likely wouldn't be such a massive success. The companies would be forced to take that content down and to block anyone else from ever uploading it.

And what do you do if you're a smaller platform? The risk of letting just one such video through would almost certainly bankrupt you. But how is a smaller platform going to police for this kind of video that none of the copyright holders want policed? But, as a platform, Article 13 leaves them no choice.

This is one of the many problems with the approach of Article 13. It assumes, incorrectly, that all infringement is black and white obvious, and that all infringement is necessarily bad and must be stopped. It cannot take into account that those assumptions are frequently not at all accurate. It cannot take into account that this will not only cut off much of what makes the internet wonderful, but will also completely keep new entrants at bay. Google and Facebook can afford to deal with this. The next Google and Facebook won't even bother. And that would make for a pretty sad, spunky, hanky-panky, cranky, stinky, dinky, lanky, honky-tonky, winky, wonky donkey.

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Filed Under: article 13, copyright, craig smith, derivative works, upload filters, video, wonky donkey, youtube