The thorny issue of ownership is under the spotlight again, after Instagram announced changes to its terms and conditions
The outrage over Instagram's announcement that it is changing its terms and conditions
has turned the spotlight on the relationship between websites and users
who upload content, whether it is photos, video, blogs or even games.
"It is the thorny problem of user-generated content – what rights users
have and what rights the online platform has," says Jaz Purewal, digital media lawyer at Osborne Clarke.
There
is no industry standard practice, says Purewal, but sites typically
take one of two approaches. "Either they say you get to keep your
content, but we get the right to use it in various ways; or they say if
you upload it to us we own it, but we give you some rights over how you
can still use it. Either approach takes a certain amount of control away
from the user – although in return they get their content hosted
online."
How will I know my rights?
They will be
outlined in the terms and conditions you sign up to when you register
with a site and you should be notified of any changes – although often
websites do this on-site, rather than by emailing individual users.
YouTube's t&cs state that it reserves the right to make changes and
advises "therefore you must look at the terms regularly to check for
such changes".
Initially, you will have to agree to a site's terms
before you can upload content, but if a change is made you may be told
that you will have to close your account if you do not agree to it.
No one actually reads the t&cs do they?
A lot of people don't seem to. When Gamestation changed its terms one April Fool's day
to tell customers that it was reserving the right to claim their souls,
none of the 7,500 people who used the site that day seemed to notice. A
survey of UK consumers suggested just 7% read online terms and conditions before they signed up for products and services, and other research has put it even lower.
Purewal
says consumers could be forgiven for not trawling through pages and
pages of small print: "They are historically designed more for lawyers
than consumers, so even if consumers do read them all, they are
relatively unlikely to understand what rights they are giving away and
what rights they are getting back". However, he says companies are
putting more effort into readable t&cs.
So what exactly am I giving away and getting back?
As
noted, it varies from site to site, and going through every site is too
big a job even for guardian.co.uk/money. However, here are some key
lines from the small print on some of the most popular sites – if you
are already using them, you are subject to these terms.
YouTube:
You retain all of your ownership rights to and videos you upload, but
when you use the site you grant a limited licence to YouTube and other
users. That licence is a "worldwide, non-exclusive, royalty-free,
transferable licence (with right to sub-licence) to use, reproduce,
distribute, prepare derivative works of, display, and perform that
Content in connection with the provision of the Service and otherwise in
connection with the provision of the Service and YouTube's business,
including without limitation for promoting and redistributing part or
all of the Service (and derivative works thereof) in any media formats
and through any media channels".
The licence extends to YouTube's
affiliates. When you leave YouTube it retains the right to keep copies
of your content on its servers.
Twitter:
You retain your rights to any content you post on Twitter, but you
grant the website a worldwide, non-exclusive, royalty-free licence (with
the right to sublicense) "to use, copy, reproduce, process, adapt,
modify, publish, transmit, display and distribute" your content. The
licence allows Twitter to make content available "to other companies,
organizations or individuals who partner with Twitter for the
syndication, broadcast, distribution or publication of such Content on
other media and services".
It adds: "Such additional uses
by Twitter, or other companies, organizations or individuals who partner
with Twitter, may be made with no compensation paid to you with respect
to the Content that you submit, post, transmit or otherwise make
available".
Facebook:
You own all of the content and information you post on Facebook, and
can control how it is shared through your privacy and application
settings. The t&cs also state: "We do not give your content or
information to advertisers without your consent."
However,
when you use Facebook you give it the right to use information "in
connection with the services and features we provide to you and other
users like your friends, our partners, the advertisers that purchase ads
on the site, and the developers that build the games, applications, and
websites you use".
Instagram
– The small print is set to change on 16 January 2013. The site has
committed to reviewing the new terms which currently say that while you
still own your content, you grant Instagram
"a non-exclusive, fully paid and royalty-free, transferable,
sub-licensable, worldwide license to use the Content that you post on or
through the Service". The t&cs add: "Some or all of the Service may
be supported by advertising revenue. To help us deliver interesting
paid or sponsored content or promotions, you agree that a business or
other entity may pay us to display your username, likeness, photos
(along with any associated metadata), and/or actions you take, in
connection with paid or sponsored content or promotions, without any
compensation to you."
Flickr:
Flickr is owned by Yahoo! and is covered by the same terms as other
Yahoo! services. When you upload a photo you retain ownership, but grant
the company a licence to use it.
The small print says:
"You grant Yahoo! a world-wide, royalty free and non-exclusive licence
to reproduce, modify, adapt and publish such Content on the Services
solely for the purpose of displaying, distributing and promoting the
specific Yahoo! Group to which such Content was submitted, or, in the
case of photos or graphics, solely for the purpose for which such photo
or graphic was submitted to the Services."
What next?
"Every
year now brings examples of sites and online businesses facing
difficulties about how to communicate effectively what they want to do
with a user's content or data – even if they are very good reasons for
making a change to their service," says Purewal. "A combination of
listening to consumers, and working to avoid regulation and litigation,
should help reduce these issues in the future – but it's still a
learning process for everyone".
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