How to deal with intellectual property in user-generated content

Focusing on copyright issues

Dr Viveca Still

User-generated content comprises a wide array of web pages such as blogs and wikis, sites dedicated to publishing user-generated content such as Youtube, Myspace and Flickr, or simply customer reviews on e-commerce sites. Among newer types of applications are mash-ups and machinimas. User-generated content is usually distinguished by the following three features;

Considering the enormous amount of user-generated content published on different websites (only YouTube includes almost 100 million video clips), there has been rather few high-profile cases.

There seems to be two layers of legal problems related to user-generated content. On the surface user-generated cotent creates certain problems with regard to the interpretation of current copyright regulation. Beyond that, it challenges certain copyright fundamentals.

First, there is the question of the website’s liability for content published by the user and the exemptions from liability provided by safe harbour clauses in the DMCA (US) or e-commerce directive (EU). Furthermore, one has to interrogate which is the liability on the part of the user regarding content up- or downloaded by him. In specific, there is the question of the grounds for considering such content a lawful new work instead of an adaptation requiring permission/licensing from the rightsholder. In addition, there is the question of whether and on what grounds the website or other users may use (or reuse) the content uploaded by the user.

From a broader perspective user-generated content seems to challenge certain fundamental concepts of copyright, such as the very idea that copyright is needed in order to give incentives for content production and dissemination. Taking this argument a step further, the mere existence of user-generated content seems to undermine commercial markets and thus poses a direct threat against traditional commercial business models.

Copyright theories of the difference between derivative works and new works are also under strain. New artforms are increasingly based on reuse of existing works (use of video clips, snapshots and sampling). In many cases this is considered infringement by copyright traditionalist whereas they merit to be considered new original works from a more liberal point of view. It is not always a question of creating something new but to put existing works within a new framework, thus creating a new user experience and a new market. User-generated content also reveals the impact of copyright on free speech and freedom of information in an era where communication transforms from "speech" to "multimedia".

There seems to be an increasing recourse to agreements and soft-law instruments in order to deal with the legal uncertainty involved in publication of user-generated content. Contracts and written policies are a prerequisite for sites providing user-generated content. To an increasing degree emphasis is now put on forming codes of conducts and multilaterally agreed principles. These soft-law instruments are intended to take care of the gray areas that the law leaves and achieve win-win-situations for those involved.

The recourse to soft law does not exclude the need to continous evaluation of the applicability and effect of established liability rules arising from e-commerce and copyright legislation. As long as the liability rules are more lenient in the US than in the EU, there is little chance for innovative business to thrive on this side of the Atlantics. However, safe harbours seems to be needed not only for businesses but also for the creative individuals out there on the rough sea of electronic communication.