[A2k] user-generated sites and copyright

[Michelle Childs]

>From the UK Guardian - an article on the copyright questions raised by new
sites such as YouTube and MySpace

http://technology.guardian.co.uk/weekly/story/0,,1876697,00.html
Whose content is it anyway?
Media executives are embracing user-generated sites, encouraging amateur
talent to upload photos and videos. But, asks Kate Bulkley, who should own
the copyright?
Chico Bongalar is a tubby twenty-something guy - real name Grant - and he
likes making videos. At the moment Chico is the No 1 attraction on Trouble
Homegrown, the UK television channel's attempt to mirror the runaway
success of web sites like MySpace and YouTube.
Chico talks about his life, getting a suntan and eats a slice of bread.
Doesn't sound like much, but he created a bit of a buzz. Chico is part of
a new wave of amateur video talent that includes the Beijing karaoke
champs, aka the Chinese Backstreet Boys (sponsored by Coca-Cola), the folk
singer Sandi Thom (now with a =A31 million recording deal) and the Arctic
Monkeys, who went from obscurity to the Brit Awards, all kickstarted by
the web.
Chico and millions of others who upload amateur videos to the growing
number of user-generated content sites such as YouTube have sent
shockwaves through big media companies - and executives are sitting up and
paying attention.
It's not just for the size of the audience; there's the increasingly
contentious issue of content ownership and control.
Chico's video narratives are free online, just like all MySpace and
YouTube content, because people like Chico create this stuff mostly just
to share ideas and get attention. Until recently, online fame and the
potential of discovery seemed enough, and the commercialisation of
so-called user-generated content (UGC) sites was not an issue - because
the sites were startups and below the radar of big media organisations.
But that's all changing.
Sites such as YouTube are growing up. MySpace is now owned by News
Corporation. Trouble's Homegrown and MTV Flux have been created by
publicly-listed, bottom-line-oriented media companies. They may be
interested in nurturing new talent, but the MTVs of the world also want to
profit from this new creative pool.
"YouTube and MySpace are all about community, and I don't believe that
their initial plans were to commercially exploit uploaded material, but
rather only to build business models based on ad revenues," says Alexander
Ross, a partner at Wiggin LLP, a media and technology law firm. "Contrast
that with an MTV and some others, who appear to be approaching the model
more from a broadcaster's perspective."
Cut and damage
Video downloads have reached phenomenal proportions - 100m are downloaded
daily on YouTube - and growing numbers of TV executives are embracing the
Chico Bongalars of this new media world. Every YouTube wannabe website
wants a Chico. But what if the site wants to make money by putting his
video on their television shows or into their channel promos? Does Chico
get a cut?
At recent industry fest IBC in Amsterdam, Robert Amlung, head of
technology at German broadcaster ZDF, said its programme to encourage
viewers to upload photos and videos to the ZDF website had proved a
success, and was clear on rights. "We want to own the rights, so if
someone puts images up on our site, they are giving their rights away," he
said. It seems viewers can have the fame; the broadcaster wants the money.
But it's not the same if the user feels like using some of the
broadcaster's content - even for no money. There are an uncountable number
of TV clips (or entire TV shows) on sites like YouTube - which have led to
repeated legal threats. Last week Doug Morris, chief executive of
Universal Music, implied that YouTube others might be sued for tens of
millions of dollars for the illegal posting of music videos.
That irked Mark Mulligan, an analyst at Jupiter Research: "If any action
is taken against MySpace and YouTube then it will be an own goal," he
observed. "It's time for record labels to wake up to the reality that the
internet's prime role is not distribution but discovery."
Jeff Jarvis, who advises organisations on new media, blogged: "The
smartest thing YouTube could do is just take all of Universal's artists
off and watch them scream when suddenly they're not talked about and
bought as much as their competitors. [The record companies] just don't get
it: YouTube and MySpace and blogs and the internet are their new
distribution and sales channels. Want to cut off your noses to spite your
faces? Fine. Here's the knife."
Protecting big media
By contrast, Warner Music decided this week to make its music video
library available to YouTube - perhaps marking a change in how media deal
with these sites.
For the average user, such sites make uploading content a breeze. They're
less good at making terms and conditions (Ts & Cs), governing what you
upload, transparent. Written by lawyers, they seem principally to protect
big media's options.
Singer Billy Bragg protested last month ("Who owns the music, MTV or me?"
August 31 2006) that sites like MySpace and MTV Flux were hijacking
peoples' creative output. That got MySpace to rewrite the Ts & Cs. People
posting content are informed they retain ultimate ownership, but have
given MySpace a licence to use content without payment. The Ts &Cs also
specify the licence "will terminate at the time you remove your content".
MySpace agrees the licence does not grant it the right to sell the
content, nor to distribute it "outside of MySpace services".
Bragg lauded the changes to MySpace's contract and re-uploaded his music.
He has been less thrilled with MTV Flux, calling (in a video blog) for a
revamp. The company has so far refused.
"I don't think our Ts & Cs are any more strict than anyone else's out
there," says Nayeem Syed, vice president of legal for MTV Networks UK &
Ireland. When pushed, Syed admits people who upload to MTV Flux forfeit
payment and relinquish their rights "in perpetuity". That is, forever.
Removing your content doesn't revoke MTV's right to use it.
MTV holds the right to "commercially exploit, host, store, copy,
distribute, modify, edit, incorporate into other material, and/or
otherwise treat in any way" content. Providers to MTV Flux also waive
"moral rights" to material - a lawyer's way of saying MTV does not have to
give the author credit. MTV doesn't plan to be quite so tough as its terms
allow. It does identify content creators, and if you leave MTV Flux, you
need only give MTV seven days' notice, as content might have been
scheduled to air on an MTV TV channel or mobile service.
Syed admits to a "balancing act" between protective language, and what MTV
might actually do in certain situations; clearly MTV is already
commercialising user-generated content, because both the website and the
TV channel take advertising. Next month MTV plans to launch its first
advertiser-supported UGC TV show. "We want to make sure we have the rights
we need and we are also trying to future proof them for stuff we don't
know about yet, but we are not the bad guys," says Syed.
There are new and revolutionary approaches to licensing content. The BBC
and Channel 4 chose Creative Commons (creativecommons.org) licence regime,
designed to encourage sharing and "make the value of the content flow
better," says Anthony Lilley, head of Magic Lantern, the digital media
company that runs C4's Fourdocs site for budding documentary makers. "I
think Creative Commons works much better when you are talking about the
web and loads of people making and sharing content because you need a
truly frictionless system," he says.
However, MTV's Syed say she is "not confident" a Creative Commons licence
is "practical", if an artist wants to "get noticed or get a record deal".
The bottom line seems to be that MTV, and likely other big media
companies, feel more comfortable with more traditional licensing language.
MTV Flux and Trouble's Homegrown see user-generated content as a path to
new talent. "We are trying to raise the bar on UGC, taking our 25 years'
experience in television and music TV and tying the UGC clips together
with real music videos to make more interesting television," says Angel
Gambino, vice president of digital media for MTV Networks UK & Ireland.
"We'd like to get to the stage where we can commission content from people
and pay them directly." But Gambino is clear that it is MTV's decision
when and if the company decides to commission someone to make content. "We
won't change our T's & C's, but we could contact those people directly and
enter into a separate negotiation with them."
In the future, Gambino envisions a "digital farmers' market" where MTV
could let people sell their content to others. But "we're not there yet",
she admits. "There are some entertaining clips up there, but not the
volume that we need to make a commercial model. Hopefully, we'll get
there."
Celia Taylor, channel controller at Trouble and Challenge, says that media
companies have to protect themselves with tough terms and conditions to
avoid copyright infringement cases, but that this has to be weighed
against the popularity of sites such as YouTube and MySpace, which are
popular because they are "so open and so free".
"Once you try and close them down, they change," says Taylor. "It's
usually the lawyers that spoil it because they want to make things safe
and also they want to make money. But we are trying to also be guided by
what the users want to do.
"And if Chico Bongalar gets really popular and I decide to make a UGC show
fronted by him, I would expect to pay him. I think talent will win out. If
you make a name for yourself and you're good, a Disney or someone will
come along and make an offer."



Ben Wallis
Transatlantic Consumer Dialogue Coordinator
Consumers International
24 Highbury Crescent
London N5 1RX
Tel: +44 20 7226 6663 Ext. 218
Fax: +44 20 7354 0607
www.tacd.org

Consumers International is a federation of consumer organisations
dedicated to the protection and promotion of consumers' rights worldwide
through empowering national consumer groups and campaigning at the
international level. It currently represents more than 230 organisations
in 113 countries. For more information, see:
www.consumersinternational.org



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--
Michelle Childs -Head of European Affairs
Consumer Project on Technology in London
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