Managing the legal risks of UGC: Copyright

In a previous post, Damian Radcliffe wrote about some of the issues arising from a new report outlining the key legal considerations facing publishers of user-generated content. Here he looks at the question of copyright.

Pictures of Scotland: results of a BBC appeal for UGC

Results of a BBC appeal for UGC

Following my discussion of defamation and issues relating to third-party comments, copyright is a third, highly complex area in relation to user-generated content (UGC). I’m surprised that we don’t see more high-profile cases of copyright violations – particularly given the rise and relative ease of scraping.

Perhaps the complexity of the law and volume of content being produced each day makes the effective policing of copyright issues difficult to manage. But, just as there is an increasing number of online tools for detecting plagiarism, we may see more technology-driven efforts by publishers in the future to protect the copyright of their words and images.

In particular, the use of uncredited and copyrighted images by online publishers is an issue which is likely to grow in profile.

My former BBC colleague Alice Taylor outlined her battle with the Daily Mail on this issue in a 2011 blog post; while Howard Owens, publisher of the successful US hyperlocal website The Batavian, had similar issues with the same publication around this time.

Such breaches, as the n0tice paper says, “can be expensive”. It outlines the example of photographer Jason Sheldon who “was recently awarded £20,000 for the unauthorised use of his photo of celebrity Kesha for an event poster”.

“Sheldon had originally invoiced £1,350 for the infringement,” the EPUK (Editorial Photographers UK & Ireland) website notes, but in response the infringer “offered the photographer just £150 for their use of the image and continued use of the image going forward”. A costly mistake indeed.

But of course copyright is not just confined to images. It also exists in the way that stories, ideas and facts are expressed: “There is no copyright in the facts of a news story – but there would be in the exact words used.” And there is also “copyright in a verbatim report of a speech [where] skill, labour and judgment has been used in compiling the report”.

Again, such infringement can be expensive, as the former BuzzFeed journalist Benny Johnson found last month after he was sacked following an investigation of 500 articles which identified “41 instances of sentences or phrases copied word for word from other sites”.

“We owe you, our readers, an apology,” Buzzfeed editor Ben Smith wrote. “This plagiarism is a breach of our fundamental responsibility to be honest with you – in this case, about who wrote the words on our site.”

Of course, defamation, third-party content and copyright by no means make an exhaustive list of legal points arising from the use of UGC. Dealing with whistleblowers, official secrets, privacy, contempt of court and court reporting are also covered in the n0tice document.

Meanwhile, other considerations are emerging in domains where the legal implications are still being worked through. ‘The right to be forgotten” is perhaps the most obvious example. It will be interesting to see how this develops and whether it will have an impact on UGC. Could it, for example, be used as a workaround for the 12-month moratorium on third-party comments mentioned earlier?

At the same time, ongoing questions around council reporting by local papers, citizens and hyperlocal publishers also continue to attract attention, not least because legal considerations are frequently held up (often erroneously) as the reason for limiting – or blocking – media access.

It is against this evolving backdrop that briefings such as the one by n0tice are both timely and welcome. As anyone who has studied media law knows, it can be a complex subject. Emerging technologies and distribution platforms mean it’s unlikely to get easier to understand any time soon.

Read more about these topics by downloading the white paper, for free, by completing this form.

The BBC College of Journalism’s law section

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