Who owns user- generated content? This was one of the unopened – or rather unanswered – questions at the SIIA Brown Bag lunch I attended in New York last week. Lots to read about the subject online, but these two pieces, the first from 200, seem better than most. The ironic thing is that many, if not most, of the people commenting on the web seem to think that it can be decided by group opinion: “I’m not a lawyer but. . . .” I think we all need some lessons in why we have a justice system, and the concept of the rule of law. One reason is to protect us from the rule of crowds.
“The copyright analysis here is pretty simple. First, the author of a blog comment creates an original work when he/she writes the comment. This, of course, assumes that the comment is in fact original and does not infringe the copyrights of another. Second, copyright protection is triggered once the comment is published, or in this case, posted to the blog. Contrary to popular belief, no additional steps (for instance, recording a copy of your work with the United States Copyright Office) are required before authors gain copyright protection. Thus, under copyright law, the blog comment author is the owner of the comment and his/her copyrights are triggered at the moment the comment is added to the blog.”
Who profits from user-created content?
“Companies like Nielsen not only make money selling the wisdom of crowds, they also copyright and legally own the crowd wisdom they collect. While I’m not a lawyer, it seems the current legal answer to the question ‘who owns the wisdom of the crowd?’ is it is owned by whoever collects and copyrights it.”
The real debate will start when we publishers figure out how to make a profit – not just generate traffic or even revenue – from content contributed by users. And that time isn’t far off. Buckle your seatbelts.
Regarding the ownership of blog comments, is your point still valid if the blog in question clearly displays a notice to the effect of “By posting a comment on this blog you agree to forfeit any copyright ownership of the comment”? It just seems like a very simple disclaimer could easily shift the ownership of something like this…
Thanks for these points. I was disappointed that I had to miss this one!
This is a good question, Joe. We have a website called LoveUSHateUS.com on which we have a statement like that, similar to those used on other sites where comments are gathered–and sometimes compiled as part of a book. (There’ve been a number of these, one a collection of wishes, I think, another of people’s “secrets.”) But I know I should be talking to our lawyer about it, because I can’t help but wonder if that constitutes a binding contract. Of course any separate item isn’t going to be worth going to court over, but some contributors write regularly, and their work could consist something substantial. What if they wanted to turn it into an article and publish it–would we be able to sue them for breaching our copyright? That hardly makes sense, but it could be true. Stay tuned, as I will look into this. And information from IP lawyers is most welcome.
Karen, your comment makes me wonder if this is trickier than I originally thought. For example, even if you’ve got that notice on your site/blog, has it always been there or was it added after comments were posted? If it’s always been there, is there any evidence to back that up?
The more I think about this, the more I wonder if an opt-in method is the only ironclad solution. It seems overbearing but if someone clicks “OK” after reading the disclaimer, and that’s the only way they can obtain comment posting privileges, maybe that’s the best solution. I hope you’ll come back and tell us what your IP lawyer said…
Larry Schwartz of Newstext and I are now on the case. We’re going to lay out the various questions and issues – your point about the date at which a notice is on the site is a great one – and then start circulating the list to relevant organizations and legal people. I’m afraid we will be asking for opinions only from qualified experts – not the way the UGC world works, I know, but when push comes to shove these questions are going to be decided in a court and not on YouTube. I plan to contact Creative Commons’s legal, too, and welcome suggestions about others to write to.