Whose content is it anyway?

Faust 2.0

Every social media and digital publishing platform is engaged in a continuous battle to acquire content, in order to attract audiences and bolster advertising revenues.

Content ownership is becoming increasingly contentious, and I wonder if we truly appreciate the near-Faustian pact we have entered into as we willingly contribute original material and our personal data in return for continued “free” access to Facebook, YouTube, Google, Flickr, LinkedIn, Pinterest, Twitter, MySpace, etc.

Even if we knowingly surrender legal rights over our own content because this is the acceptable price to pay for using social media, are we actually getting a fair deal in return? The fact is that more users and more content means more advertisers – but are we being adequately compensated for the privilege of posting our stuff on-line? Even if we are prepared to go along with the deal, are our rights being adequately protected and respected?

In late 2012, Instagram faced intense public backlash against suggestions it would embark upon the commercial exploitation of users’ photographs. While appearing to backtrack, and conceding that users retain copyright in their photographs, there is nothing to say that Instagram and others won’t seek to amend their end-user license agreements in future to claim certain rights over contributed content. For example, while users might retain copyright in their individual content, social media platforms may assert other intellectual property rights over derived content (e.g., compiling directories of aggregated data, licensing the metadata associated with user content, or controlling the embedded design features associated with the way content is rendered and arranged).

Even if a social media site is “free” to use (and as we all know, we “pay” for it by allowing ourselves to be used as advertising and marketing bait), I would still expect to retain full ownership, control and use of my own content – otherwise, in some ways it’s rather like a typesetter or printer trying to claim ownership of an author’s work….

The Instagram issue has resurfaced in recent months, with the UK’s Enterprise and Regulatory Reform Act. The Act amends UK copyright law in a number of ways, most contentiously around the treatment of “orphan” works (i.e., copyright content – photos, recordings, text – where the original author or owner cannot be identified). The stated intent of the Act is to bring orphan works into a formal copyright administration system, and similar reforms are under consideration in Australia.

Under the new UK legislation, a licensing and collection regime will be established to enable the commercial exploitation of orphan works, provided that the publisher has made a “diligent” effort to locate the copyright holder, and agrees to pay an appropriate license fee once permission to publish has been granted by the scheme’s administrator.

Such has been the outcry (especially among photographers), that the legislation has been referred to as “the Instagram Act”, and the UK government’s own Intellectual Property Office was moved to issue a clarification factsheet to mollify public concerns. However, those concerns continue to surface: in particular, the definition of “diligent” in this context; and the practice of some social media platforms to remove metadata from photos, making it harder to identify the owner or the original source.

Meanwhile, the long-running Google book scanning copyright lawsuit has taken another unexpected twist in the US courts. From the outset, Google tried to suggest it was providing some sort of public service in making long-out-of-print books available in the digital age. Others claim that it was part of a strategy to challenge Amazon.

Despite an earlier unfavourable ruling, a recent appeal has helped Google’s case in two ways: first, the previous decision to establish a class action comprising disgruntled authors and publishers has been set aside (on what looks like a technicality); second, the courts must now consider whether Google can claim its scanning activities (involving an estimated 20 million titles) constitute “fair use”, one of the few defences to allegations of breach of copyright.

Personally, I don’t think the “fair use” provisions were designed to cater for mass commercialization on the scale of Google, despite the latter saying it will restrict the amount of free content from each book that will be displayed in search results – ultimately, Google wants to generate a new revenue stream from 3rd party content that it neither owns nor originated, so let’s call it for what it is and if authors and publishers wish to grant Google permission to digitize their content, let them negotiate equitable licensing terms and royalties.

Finally, the upcoming release of Apple’s iOS7 has created consternation of its own. Certain developers with access to the beta version are concerned that Apple will force mobile device users to install app upgrades automatically. If this is true, then basically Apple is telling its customers they now have even less control over the devices and content that they pay for.

4 thoughts on “Whose content is it anyway?

  1. Rory- an excellent post! This is sooo the topic of discussion all over the various soc. media groups- especially the business groups on LinkedIn. It is odd to me that we even have to ask such things as not only who owns content but who owns our profiles! Writers and artists have fought this battle for years and now others are getting a taste of what it is like to have one’s life usurped by commercial entities, employers and just about everyone else. Do we have rights anymore? Does anyone care to think that deeply about the implications or are we just content to post content?

    • I guess that’s my point – do we understand the trade-off when engaging with social media? In terms of privacy, I think most people realise that once content is on the internet, it’s no longer private! But when it comes to the ownership, control and exploitation (use and misuse) of our content, perhaps we have been too willing to surrender to one-sided licensing terms in the belief we are getting something of value in return, and for “free”. For another angle on this topic, see this recent article: http://bit.ly/1bHBoSp

  2. Great post Rory. These are difficult issues and we should struggle with them because there’s no cut and dried answer to what the best approach is for us as a collective.

    On the one hand it’s important to protect copyright, on the other, it’s important as Harvard Professor Lawrence Lessig says not to choke creativity. You may enjoy this talk by him http://www.ted.com/talks/larry_lessig_says_the_law_is_strangling_creativity.html

    I reflect on many examples of where sharing works leads to unexpected value to both the organisation and the public. For example the Library of Congress opened up its photo archive on Pinterest, not only did it gain a high circulation of these beautiful photographs but people who recognised events put up their hands to share photographs in their collection, thus contributing to the archive and providing a beautiful narrative to the growing collection. Open source contributions. Video learning.

    On the other hand the book scanning project really takes control out of the hands of authors, publishers and distributors.

    Will another economic model around creativity emerge altogether? Should there be a different legal model to deal with hyper-connectivity or should we continue to try and adapt but paste what are essentially old laws into a new space? I don’t have the answers of course.

    You’ve probably seen this already but the http://www.alrc.gov.au is looking at the digital space and a review is currently underway on fair use in Australia if you’re interested.

    • This topic will run and run…. I don’t buy into the idea that copyright or intellectual property laws of themselves stifle creativity or innovation. What matters is how originality is recognised and rewarded by means of a consistent system of civil/common law and statutory provisions plus contractual agreements freely entered into between willing parties who negotiate their respective moral, personal and economic rights on an equal basis. I have no problem with Creative Commons, Extended Collective Licensing or “open source” content provisions, but not if they are either mandatory or the default option.

      It’s interesting that the recent UK legislation on orphan works expressly excludes anything adjudged to be Crown Copyright (i.e., works created or owned by the government and certain statutory bodies). This privileged position over its own content (the creation of which UK taxpayers ultimately pay for….) can be traced back to the early 1990s. At that time, commercial law publishers began to transfer more of their content on-line – including compilations of legislation, which the publishers enhanced through their own efforts by the inclusion of original annotations, extensive editorial content, hyper-text links and cross-referencing – making this content more accessible and of greater utility than the government’s own “original” authorised versions. Her Majesty’s Stationery Office (now part of a private sector partnership), as the official publisher of UK legislation covered by Crown Copyright drove a very hard bargain with the commercial publishers to allow them to continue providing their annotated legislation services, and other publications containing any Crown Content material.

      On another level, we have seen challenges to social media’s use of facial recognition software, GPS, street-level photography and personal data triangulation to identify specific individuals. This has led to breach of privacy and other civil actions concerning the use and misuse of end user data. Although some social media privacy cases have been decided under copyright law, I think it’s fair to say that the presence (or absence) of intellectual property law is not stifling creativity!

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