Legal Aspects Of New Media Quirk 2008

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This is an update to my presentation on legal issues arising out of new media. I will present this version at a series of breakfast talks hosted by Quirk.biz

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Legal Aspects Of New Media Quirk 2008

  1. 1. New Media and the law
  2. 2. Who am I? New media lawyer, blogger, social media fanatic
  3. 3. Social media is very good! It is even better than ...
  4. 4. But there are risks
  5. 5. Don’t panic
  6. 6. The legal stuff ...
  7. 7. Issues to consider ... ✦ Freedom of expression ✦ Content licensing ✦ Privacy ✦ Unlawful competition
  8. 8. (we call it “Freedom of Expression”)
  9. 9. This is the right ...
  10. 10. There are competing rights ...
  11. 11. versus “Freedom of the press does not mean that the press is free to ruin a reputation or break a confidence, or to pollute the cause of justice or to do anything that is unlawful. However freedom of the press does mean that there should be no censorship. No unreasonable restraint should be placed on the press as to what they should publish.”
  12. 12. “Because they have never been exposed to the sinful ways of the West, the various tribes of South Africa live healthy and peaceful lives, only occasionally indulging in a bit of ethnic cleansing.”
  13. 13. It is a careful balancing act
  14. 14. Content
  15. 15. What is copyright? ✦ Exclusive rights ✦ Works embodying intellectual content ✦ Authorise others ✦ Perform certain acts (for example, to exploit works for personal gain or profit)
  16. 16. There are exemptions from copyright infringement
  17. 17. ✦ Fair dealing ✦ Use for judicial proceedings ✦ Quotations ✦ Illustrations for teaching ✦ Ephemeral copies ✦ Works delivered in public ✦ Reproductions in press or broadcast ✦ Official texts, political speeches, news of the day
  18. 18. Is sharing caring? ✦ Copyright vests by default ✦ Copyright Act 98 of 1978 ✦ Severely limits how content can be used without permission ✦ Not conducive to Web 2.0 free luvin’
  19. 19. There is another option ...
  20. 20. What is Creative Commons all about?
  21. 21. Creative Commons licenses are free licenses that permit a range of uses of content licensed under them Creative Commons licenses work within the framework established by Copyright http://creativecommons.org/about/licenses/ meet-the-licenses
  22. 22. How about a practical example
  23. 23. 36 Ghosts IV by Nine Inch Nails released under a Creative Commons Attribution Non-Commercial ShareAlike 3.0 US license
  24. 24. ✦ Free download (9 tracks) ✦ $5 download (all 4 albums, high quality)* ✦ $10 2 CD set (including download) ✦ $75 deluxe edition 2 CD, 1 DVD, 1 Blu- ray disc (don’t forget the downloads) ✦ $300 Ultra-deluxe edition superpack * I bought one one these ... and I am barely a fan
  25. 25. So what happened?
  26. 26. 2 500 x $300 = $750 000
  27. 27. $1 619 420 in the first week of sales* *According to Rolling Stone: http://www.rollingstone.com/rockdaily/index.php/2008/03/13/nine-inch-nails-ghosts-i-iv-makes-trent-reznor-an-instant-millionaire/
  28. 28. Oh, and NIN isn’t signed to a major record label
  29. 29. and it isn’t just about the big bands
  30. 30. Jonathan Coulton jonathancoulton.com
  31. 31. Unlawful competition
  32. 32. Customer relationships ✦ Employees are the face of a company ✦ Who really forms relationships with customers? ✦ Are employers protected if employees leave? ✦ Who has the power?
  33. 33. The stick Restraint of trade provisions* Monitor data transfers and employee communications Disciplinary procedures Dismissals *Most definitely enforceable
  34. 34. The carrot Participate in relationship building exercises with customers Look after employees Take an interest in who is saying what to whom
  35. 35. Privacy
  36. 36. Which of these do you use?
  37. 37. How much do you publish online?
  38. 38. What happens to what you publish online?
  39. 39. What can you do?
  40. 40. Take your chances
  41. 41. or ...
  42. 42. Read the terms of use
  43. 43. Read the privacy policy
  44. 44. Draw lines in the sand ✦ What information is most sensitive? ✦ Decide to never let that information out into the wild. ✦ Everything else is compromised and public.
  45. 45. Claim your identity on the Web
  46. 46. on the other hand you could be the provider ...
  47. 47. in which case there are a couple things to bear in mind ...
  48. 48. There are rules about gathering personal information
  49. 49. “personal information”1 means information about an identifiable, natural person, and in so far as it is applicable, an identifiable, juristic person, including, but not limited to- a) information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person; b) information relating to the education or the medical, criminal or employment history of the person or information relating to financial transactions in which the person has been involved; c) any identifying number, symbol or other particular assigned to the person; d) the address, fingerprints or blood type of the person; e) the personal opinions, views or preferences of the person, except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual; f) correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence; g) the views or opinions of another individual about the person; h) the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the person, but excluding the name of the other individual where it appears with the views or opinions of the other individual; and i) the name of the person where it appears with other personal information relating to the person or where the disclosure of the name itself would reveal information about the person; j) but excludes information about a natural person who has been dead, or a juristic person that has ceased to exist, for more than 20 years; Draft Protection of Personal Information Bill
  50. 50. How would this affect you?
  51. 51. Makes biometric security systems a little tricky
  52. 52. Suddenly people’s opinions you may gather are protected as personal information
  53. 53. Do you have a privacy policy?
  54. 54. Privacy in social media ✦ Can be tricky ✦ Read the terms of use ✦ Be sensible about sensitive information ✦ There can be outages and exploits
  55. 55. Run for the hills? ✦ No, it is not all bad ✦ Social media has much to offer businesses ✦ The main thing is to be aware of the risks ... ✦ ... and provide for them
  56. 56. My contact details ✦ Paul Jacobson ✦ 083 444 8260 ✦ paulj@jacobson.co.za ✦ pauljacobson.org
  57. 57. Where you can find me paul.myplaxo.com linkedin.com/in/paulj twitter.com/pauljacobson pownce.com/pauljacobson pejrm1
  58. 58. Selected image credits* ✦ Slide 3: Image by Cambodia4Kidsorg (http://www.flickr.com/photos/cambodia4kidsorg/354932362/) licensed under Creative Commons Attribution 2.0 license; ✦ Slide 5: Listen to ME! by Orange Beard (Creative Commons BY 2.0) at http://www.flickr.com/photos/metrojp/92038203/; ✦ Slide 6: the conversation by polandeze (Creative Commons BY 2.0) at http://flickr.com/photos/polandeze/1206596658/; ✦ Slide 7: Sharing birthday cake by efleming (Creative Commons BY 2.0) at http://www.flickr.com/photos/efleming/237379252/; ✦ Slide 8: Untitled by ms.Tea (http://flickr.com/photos/teagrrl/79351300/in/set-1689764/) licensed under a Creative Commons Attribution 2.0 license; ✦ Slide 11: Constitutional Court by Paul Jacobson licensed under Creative Commons Attribution ShareAlike 2.0 license; ✦ Slide 13: Free speech zone by mus (http://flickr.com/photos/mus/3457967/) licensed under Creative Commons Attribution ShareAlike 2.0 license; ✦ Slide 15: Doors of the Constitutional Court by Paul Jacobson licensed under a Creative Commons Attribution ShareAlike 2.0 license; ✦ Slide 18: Balancing Act by zeebleoop (http://flickr.com/photos/zeebleoop/325400310/) licensed under a Creative Commons Attribution No Derivatives 2.0 license; ✦ Slide 19: Free Content for a Free Society! 7/12 by Matthias Mehldau (Creative Commons BY 2.0) at http://flickr.com/photos/ wetterfrosch/130493617/; ✦ Slide 24: More sheet music by pfly (http://flickr.com/photos/pfly/128167751/) licensed under Creative Commons Attribution ShareAlike 2.0 license; ✦ Slide 26: Vinyl by stevecadman (http://flickr.com/photos/stevecadman/172600054/) licensed under Creative Commons Attribution ShareAlike 2.0 license; ✦ Slide 28: copyright by tuppus (http://flickr.com/photos/tupwanders/79458852/) licensed under Creative Commons Attribution 2.0 license ... ✦ Slide 60: my fingerprint (index, left hand) (http://flickr.com/photos/fazen/3778408/) licensed under a Creative Commons Attribution 2.0 license; ✦ Slide 61: interview (http://flickr.com/photos/timsnell/1387723389/) licensed under a Creative Commons Attribution No-Derivatives 2.0 license. *All images used are available under license from iStockphoto.com, have been licensed under Creative Commons license or are in the public domain. Where the images

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