[Ecommerce] who should own the content anyway?

[Manon Ress]

Media executives are embracing user-generated sites, encouraging
amateur talent to upload photos and videos. But, asks Kate Bulkley,
who should own the copyright?

http://technology.guardian.co.uk/weekly/story/0,,1876697,00.html?
gusrc=3Drss&feed=3D20

Thursday September 21, 2006
The Guardian

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."

************************************************
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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