User Generated Content And Copyright

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Discusses copyright issues that arise from employing and developing user-generated content on social networking sites and elsewhere.

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User Generated Content And Copyright

  1. 1. User Generated Content and Copyright Mark S. Hayes Blake, Cassels & Graydon LLP Toronto Canada Risk Management on the Internet March 31, 2008
  2. 2. User Generated Content • UGC not a new concept – Bulletin boards in 1990s were similar in some ways • Many factors have increased level of concern: – Increased bandwidth – Improved compression – New technologies for presenting web sites – New ways to connect users
  3. 3. Types of UGC • Text-related – Reviews and rants • Wikis – Collaborative web site collecting factual information • Social networking sites – In purest form, little copyright material • Folksonomies • Link exchanges – Have been some controversies about “deep links”, but generally do not create copyright issues
  4. 4. Types of UGC (2) • Collaborative creation – Sometimes online collaboration used to create offline content • Submission contests – Mat be used to create marketing material and other commercial content • Games and online worlds • File exchanges
  5. 5. Copyright Issues Involving UGC • Does content enjoy copyright protection? – Content must original enough to qualify for copyright protection – Much of blogosphere might not qualify • Ownership • Infringement • Defences or exemptions • Strategies for UGC site owners
  6. 6. UGC Ownership • Often ownership of UGC is quite complex – Owned by poster – Owned by poster and third party – Adapted from third party content – Owned entirely by third party • Single item may have many copyright components with differing ownership • Often “mashups” of content from multiple sources encouraged by site operator • Site operator should not seek assignment of ownership – Potential increase in liability
  7. 7. Infringement • Submission and posting of UGC will infringe a number of rights – Reproduction – Communication – Public performance – Making available – Broadcasting
  8. 8. Defences or Exceptions • “Fair dealing” or “fair use” – Applicable to both poster and site operator – Extent of defence varies widely by jurisdiction – May limit ability to rely on defence if no geographic limitation on site access • Innocent hoster – Again varies widely by jurisdiction – Generally must not know content infringes and must not take active role in posting
  9. 9. Defences or Exceptions • Notice and take down – Many jurisdictions require that “innocent” hosters take down infringing content upon receipt of a notice from copyright holder – Details vary between jurisdictions – DMCA procedure used by many sites, but may not protect site operator in other jurisdictions – Re-posting of infringing UGC
  10. 10. Standardization • “Principles for User Generated Content” – Published October 2007 by coalition of media companies and UGC sites • Number of obligations on UGC site operators – Content identification technology – Assist in locating infringing content – Take down content on receipt of a notice from copyright owner • In return, UGC site operators would not be sued and Copyright Owners would “accommodate fair use” • Principles widely criticized as biased towards excessive control by copyright owners
  11. 11. Standardization • Some issues – Lack of consultation with user groups – Technology focus makes compliance difficult for smaller UGC sites • Too soon to tell if Standards will become de facto industry requirement – Note that Google is using technology to prevent infringement even though not subscribing to Principles
  12. 12. Some Site Operator Strategies • Terms and conditions • Notice and takedown • Licensing and rights clearance • Stay below the radar
  13. 13. Terms and Conditions • Some important basics – Restrictions on use and penalties for breach • Most common penalty is withdrawal of posting right • Difficult to enforce if users anonymous • May never actually want to use penalties • Usually intended to short-circuit argument that infringement is condoned – Warranty about content ownership – Licence to use content as required by UGC site (don’t forget future requirements)
  14. 14. Terms and Conditions • Must decide whether to use click-through agreement or merely post terms – As in other situations, depends on whether positive terms need to be imposed • Be careful of over-reaching – E.g. Sumo.tv India tries to get warranty that content will not infringe any possible use anywhere in the world • Possible use of Creative Commons licences
  15. 15. Bare Licences • “Bare licence” without consideration revocable in many jurisdictions, including Canada • Terms on many sites say that licence of content is irrevocable – Wikipedia approach: just sue us • Better approach? – Allow revocation on notice but reserve right to use for archival and related purposes – E.g. Facebook
  16. 16. Notice and Takedown • DMCA requires very specific procedure – Site operator cannot rely on defence unless it follows procedure – Copyright owner cannot sue non-responsive site operator unless it follows procedure • However, DMCA only applies in US – Following DMCA procedure may not work in other jurisdictions – E.g. if copyright owner does not follow DMCA procedure, site operator can ignore notice; notice may nevertheless be valid in other jurisdictions – Also, site operator may be liable to poster in non-US jurisdictions if content removed under DMCA procedure
  17. 17. Licensing and Rights Clearance • Big problems licensing UGC – Site operator doesn’t know who owns it – Poster often doesn’t know who owns it • Three choices – Get very broad licence from all big copyright owner groups – License specific content and only allow UGC based on it – Create own content for use by posters • Specific content licence not practical for most applications, but……
  18. 18. Licensing and Rights Clearance • One option is to get very wide licence to try to cover everything users will submit • YouTube has struck licence deals with: – CBS – NBC – Universal Music – Sony/BMG – Warner Music – EMI – CBC – UK music collectives
  19. 19. Licensing and Rights Clearance • YouTube likely has not cleared all necessary rights, even for mainstream music and videos – Producer or record company does not hold all rights – Many rights holders not represented by large companies • In any event, only very large sites have option of obtaining wide licence – Copyright owners not interested in small fish – Control activities through enforcement, not licensing
  20. 20. Stay Below The Radar • Big copyright owners generally don’t care about small UGC sites • If no-one has heard of site, unlikely to face enforcement actions • Staying small and unnoticed not part of most site operator’s business plan
  21. 21. Future of UGC and Copyright • Current copyright regime presupposes centralized production, financing and distribution of copyright content • Development of decentralized and diffuse UGC doesn’t fit too well into this model • Will copyright bend to UGC or will use of UGC have to become copyright-compliant? • TPM situation points to latter but copyright interests are very entrenched
  22. 22. Questions? For a copy of these slides, just ask! mark.hayes@blakes.com

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