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

1. User Generated Content and
Copyright
Mark S. Hayes
Blake, Cassels & Graydon LLP
Toronto Canada
Risk Management on the Internet
March 31, 2008

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. 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. 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. 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. 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. Infringement
• Submission and posting of UGC will infringe a
number of rights
– Reproduction
– Communication
– Public performance
– Making available
– Broadcasting

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. 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. 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. 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. Some Site Operator Strategies
• Terms and conditions
• Notice and takedown
• Licensing and rights clearance
• Stay below the radar

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. 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. 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. 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. 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……

19. 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

20. 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

21. 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

22. 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

23. Questions?
For a copy of these
slides, just ask!
mark.hayes@blakes.com