The proliferation of UGC is transforming the digital landscape. It brings with it a myriad of opportunities for creativity and a multitude of previously untapped sources of content. Yet, UGC is a volatile substance. Handle it carelessly and a distributor’s fingers can easily be burned.
UGC and Web 2.0
What is UGC? UGC is content that is generated by users themselves and which may appear on a variety of different media. It is ‘generated’ as it will often consist mainly of an eclectic mix of third party material i.e. content that is not the original work created by the user who has generated it. Examples of different types of UGC include:- social networking: www.myspace.com; www.mysinglefriend.com; advertiser sponsored content: www.youtube.com; www.revver.com; brand owners: www.motomoments.com; broadcasting: www.troublehomegrown.co.uk; and publishing: www.wikipedia.org.
Web 2.0 is a term given to the second generation of the world wide web that enables users of the internet to collaborate and share a rich variety of audiovisual UGC more readily via web applications rather than static HTML (i.e. Web 1.0). Cheaper broadband and storage have enabled Web 2.0 to evolve rapidly, allowing users previously limited to sharing text and data to exchange static images and, more recently, richer audiovisual content.
What does UGC mean for platform owners, content creators, brand owners and publishers?
Brand owners have a greater ability to interact with viewers and consumers. Platform owners can supplement their own content with UGC. This makes for a more diverse mix of programming which can then be tailored to, as well as be generated by, recipients themselves. Advertising agencies are presented with new creative opportunities (particularly in the online environment where content is less strictly regulated). For advertisers, UGC also provides a new and effective means of gathering consumer feedback. Publishers can effectively call upon any number of contributors to develop and continuously revise a publication. This is all seemingly good news. However, all that glitters is not gold: publication of content submitted from an unknown source and which is not cleared or moderated will send shivers up even the most liberal risk manager’s spine.
What kinds of legal issues arise from UGC?
UGC comprises content which may be owned by one or more rights holders. The richer the content, the greater the number of rights holders. Film is a classic example of content which is likely to have a large number of rights holders (e.g. the owners of the copyright in the film recording itself, scriptwriters, actors, brand owners, owners of the film location, the soundtrack and the underlying composition). Each is often controlled by separate parties.
Before sources of UGC are able to submit their content, they should be required to accept terms and conditions relating to that content. Consideration should be given as to whether such terms should grant the distributor of the content a licence or an assignment of rights (and whether the recipient wants an option to extend the scope of the licence or, alternatively, be granted an assignment should the UGC be successful). Sources should guarantee that they have all necessary rights in the UGC for the purposes for which it is to be used; similarly, that it does not contain anything unlawful and that is does not infringe any third party’s rights.
More sophisticated distributors of UGC may even consider including template release forms which those generating UGC can download and use during production to ensure that all necessary rights have been obtained in relation to any UGC which they submit. Sources should also be required to waive any moral rights and should indemnify the recipient against any loss and third party claims arising from breach of the terms and/or use of their UGC.
The basic point to keep in mind, however, is that an indemnity is only as good as the person giving it e.g. having an indemnity in the face of a criminal prosecution (e.g. for obscenity) or from a contributor in a foreign jurisdiction, who is under age and of limited financial resource, will be of little assistance in the event of a claim. In addition, an indemnity from a consumer will only be enforceable under English law where it satisfies a test of reasonableness. Where advertisers have been associated with UGC, much will depend on the extent to which they have sanctioned publication of the offending content.
Before a brand is associated with any UGC, it should be required by the person marrying the brand to the UGC in question to accept terms acknowledging the inherent risks in piggybacking UGC. Anyone gathering, collating and exploiting UGC, in turn, should limit their liability arising from UGC to a specific sum and exclude certain types of loss (such as indirect and consequential loss).
Yet, take heart – it is not all risk, risk, risk. Distributors of UGC may, in certain cases, be able to take refuge from liability for offending UGC in certain safe harbours provided for by law. For example, in defamation, a distributor may claim a defence of ‘innocent dissemination’, provided that he/she had no control over, and did not have the requisite level of knowledge of, the defamatory content in question.
Similarly, in both civil and criminal matters, a person who is merely ‘hosting’ (i.e. storing) unlawful content and who has no control over, or does not sanction, such content, who is not sufficiently aware that it is unlawful and acts swiftly to remove such content when notified, will not be liable. An analogous defence also applies where a distributor is only acting as a ‘mere conduit’ (i.e. he/she is solely a means by which the material in question is transmitted).
Distributors take note: as a general rule, if in doubt, remove suspect content and assess whether it is unlawful later. Liability runs from when a platform owner becomes aware (or could reasonably have been aware from the surrounding facts) of the unlawful content’s existence. Moderation and prompt removal of any content which a distributor has been notified of as being offensive or unlawful will help to minimise liability. In addition, streaming, rather than allowing users to download, UGC may reduce a distributor’s potential liability.
Other issues that can arise are privacy, passing off and trade mark infringement.
Philip James
Media, Brands & Technology
February 2007
For further information contact:
Philip James.