When to offer a piggyback

September 1, 2006

img0000.jpgMichael Simkins LLP have published a warning to advertisers regarding User Generated Content:-

“If the content does infringe third party rights then under UK law an advertiser may find itself liable for any resulting claims either jointly with the content creator or on his own account.

UK law is as yet untested as to whether an advertiser piggybacking on user-generated content would be liable for copyright infringement. A user generated video may be a parody of an existing audio visual work, it may include music written or recorded by another, comprise footage of a concert or dramatic performance, copy or mimic cartoon characters, include actors or identifiable members of the public, depict distinctive locations or products. If any of these (or other similar) inclusions are made without appropriate permission then it may be an infringement of copyright or related rights. The content generator would certainly be liable for any infringing acts but it is not clear whether UK courts would find the advertiser to be liable.

“Copyright is infringed by anyone who copies the work (or a substantial part), issues infringing copies to the public, rents or lends it to the public, performs, shows or plays it in public or communicates it to the public. It is also infringed by anyone who authorises these acts. It is a secondary infringement of copyright to possess an infringing copy in the course of business.”

Referring to the EUCD directive, advertisers are simply users of a hosted service, and request content is taken down (either their advert or the content if it’s infringing their copyright).

The above is a solution to a problem (“It’s a split between receiving stolen goods and contributory infringement.” – Thanks Rob (who likes to point out he’s not a lawyer etc)) that doesn’t need to exist. If advertisers worked with the User Generated authentic media communities, there be none of the anxieties of guessing where to place a commercial endorsement. Working with some tidy Creative Commons licenced media, advertisers and their creative agencies can bring the spit ‘n polish that home-brewed media desperately needs, whilst warming up the communities who are the consumer group they are interested in.

There really is no need to stack up the legal risk when you have a non-zero sum relationship between online collaborators. While commercial voices compete for attention over the glut of community media offerings, and losing by having to slip an advert in the least obtrusive moment, the effortless collaboration based upon every participants ability to satisfy their own comfort zone has yet to be presented. Collaboration is not about hierarchies, it’s about what you can offer. Suitable offerings result in suitable collaborations.

Meanwhile, Google and MySpace will be facing such anxieties during their $900m relationship, and I’m sure Sony and Grouper have yet to work out how to manage legal threats.

Image by the master of appropriation and copyright juggler – Jeff Koons. “Stacked Animals, ed. #150/200” 2003.#

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