Q&A: User-generated content and copyright

If you believe everything you read in the press, there’s money to be made from creating content for the masses to view online. Top YouTube content producers reportedly earn $100,000 a year from advertising revenue and some people have quit their day jobs to blog about everything from pets to parenting to pineapples.

If you are generating content for use on the internet (UGC), whether for commercial or private purposes, this short Q&A will help you identify the copyright issues to consider.

What is UGC?

UGC stands for user generated content and is also known as consumer generated media. It is a term used to cover any form of content such as videos, posts, comments, images, audio files and other forms of media created by consumers for use on an online system or service. The content is also publicly available to other consumers or end-users.

Examples include:

• comments and posts on social networking sites such as Twitter and Facebook
• images, photos and videos uploaded to sharing sites such as YouTube, Instagram and Flickr
• blog sites that invite comments
• articles on crowd-sourced information sources such as Wikipedia.

Is UGC protected by copyright in Australia?

Yes. The Copyright Act 1968 (Cth) gives the owner of certain material, categorised as ‘works’ and ‘subject matter other than works’, the exclusive right to control certain uses of their material.
Under the Copyright Act 1968 (Cth) ‘works’ are literary works, dramatic works, artistic works and musical works. ‘Subject matter other than works’ are sound recordings, films, broadcasts and published editions.

Who owns copyright in UGC?

If you take a photo, record some footage, record some music, or write an article and post it to a website, the author or creator will generally own and retain copyright in the work created and posted. However, there are exceptions to this rule. For example, if an employee is creating the works in the course of employment, the employer will generally own copyright.

What if I use someone else’s copyright work in my UGC?

If you intend to use someone else’s works or subject matter other than works in a post on a blog or in a YouTube video, you will generally need to obtain permission for its use from the copyright owner if you take a substantial part of the copyright owner’s work. For example, if you shoot a video and add a soundtrack of a popular song, then you will most likely need to obtain permission to use the song. In fact, as copyright will exist separately in the sound recording for the song, the music and the lyrics (which may have different copyright owners), you will need to obtain permission from each owner. This may involve paying a fee or royalties to the copyright owner(s) in return for a licence to use the song.

It can be difficult to establish whether you are taking a substantial part of a copyright work, and legal advice should be sought before you post any content that is not your own without permission. The ‘10% rule’ (either ‘if you change 10% it’s not copying’ or ‘you’re allowed to copy 10%’) is a myth; taking quite a small part can infringe copyright if it is a very important part.

When is permission not required to use copyright work in UGC?

As a general rule, permission to use a copyright work is not required:

• if copyright has expired
• you are using an insubstantial part of the material
• material is being used for a ‘fair dealing’ under the Copyright Act 1968 (Cth). This applies to a use of copyright material that is fair and is for the purpose of research or study, criticism or review, parody and satire, reporting the news or for providing professional legal advice, or
• there is a specific exception under the Copyright Act 1968 (Cth).

Assessing whether an exception applies can be tricky so seek legal advice before relying on an exception.

What can social networking and file sharing sites do with the UGC I post?

The terms of use for a particular site will generally spell out the rights the site owner has in relation to the copyright works you post. These terms of use generally grant the sites very broad rights in relation to the content. For example, Facebook’s terms of use provide that if you post photos and videos to Facebook, you grant Facebook a non-exclusive, non-transferable, sub-licensable, royalty-free world-wide license to use those photos or videos.

How can I protect the copyright in my UGC?

Read the terms of use of the social media platform you intend to post to so you understand what rights and responsibilities you have. Also, consider whether a copyright notice could be put on a photo or added to the end of a video signalling clearly to others that you are the copyright owner. You may also want to monitor popular sites if you are concerned about third party infringement.

If another user uses my UGC, what rights do I have?

Many sites will remove content if notified by the copyright owner of an alleged infringement; however whether it is appropriate to rely on this mechanism will depend on the circumstances. If you believe your copyright is being infringed, seek legal advice so an appropriate strategy for addressing the infringement can be adopted. This may include asking the site to remove the content, approaching the infringer directly, sending a letter of demand or commencing legal proceedings.

Finally

Remember, copyright law is only one of the areas of law that user generated content can touch on. Defamation, privacy, confidential information and trade mark laws should also be considered when posting content. Please contact us to find out more.