Whose content is it anyway?
By Kate Bulkley
Thursday September 21, 2006
Media executives are embracing user-generated sites, encouraging amateur talent to upload photos and videos. But, asks Kate Bulkley, who should own the copyright?
Chico Bongalar is a tubby twenty-something guy - real name Grant - and he likes making videos. At the moment Chico is the No 1 attraction on Trouble Homegrown, the UK television channel's attempt to mirror the runaway success of web sites like MySpace and YouTube. Chico talks about his life, getting a suntan and eats a slice of bread. Doesn't sound like much, but he created a bit of a buzz. Chico is part of a new wave of amateur video talent that includes the Beijing karaoke champs, aka the Chinese Backstreet Boys (sponsored by Coca-Cola), the folk singer Sandi Thom (now with a £1 million recording deal) and the Arctic Monkeys, who went from obscurity to the Brit Awards, all kickstarted by the web.
Chico and millions of others who upload amateur videos to the growing number of user-generated content sites such as YouTube have sent shockwaves through big media companies - and executives are sitting up and paying attention.
It's not just for the size of the audience; there's the increasingly contentious issue of content ownership and control.
Chico's video narratives are free online, just like all MySpace and YouTube content, because people like Chico create this stuff mostly just to share ideas and get attention. Until recently, online fame and the potential of discovery seemed enough, and the commercialisation of so-called user-generated content (UGC) sites was not an issue - because the sites were startups and below the radar of big media organisations. But that's all changing.
Sites such as YouTube are growing up. MySpace is now owned by News Corporation. Trouble's Homegrown and MTV Flux have been created by publicly-listed, bottom-line-oriented media companies. They may be interested in nurturing new talent, but the MTVs of the world also want to profit from this new creative pool.
"YouTube and MySpace are all about community, and I don't believe that their initial plans were to commercially exploit uploaded material, but rather only to build business models based on ad revenues," says Alexander Ross, a partner at Wiggin LLP, a media and technology law firm. "Contrast that with an MTV and some others, who appear to be approaching the model more from a broadcaster's perspective."
Cut and damage
Video downloads have reached phenomenal proportions - 100m are downloaded daily on YouTube - and growing numbers of TV executives are embracing the Chico Bongalars of this new media world. Every YouTube wannabe website wants a Chico. But what if the site wants to make money by putting his video on their television shows or into their channel promos? Does Chico get a cut?
At recent industry fest IBC in Amsterdam, Robert Amlung, head of technology at German broadcaster ZDF, said its programme to encourage viewers to upload photos and videos to the ZDF website had proved a success, and was clear on rights. "We want to own the rights, so if someone puts images up on our site, they are giving their rights away," he said. It seems viewers can have the fame; the broadcaster wants the money.
But it's not the same if the user feels like using some of the broadcaster's content - even for no money. There are an uncountable number of TV clips (or entire TV shows) on sites like YouTube - which have led to repeated legal threats. Last week Doug Morris, chief executive of Universal Music, implied that YouTube others might be sued for tens of millions of dollars for the illegal posting of music videos.
That irked Mark Mulligan, an analyst at Jupiter Research: "If any action is taken against MySpace and YouTube then it will be an own goal," he observed. "It's time for record labels to wake up to the reality that the internet's prime role is not distribution but discovery."
Jeff Jarvis, who advises organisations on new media, blogged: "The smartest thing YouTube could do is just take all of Universal's artists off and watch them scream when suddenly they're not talked about and bought as much as their competitors. [The record companies] just don't get it: YouTube and MySpace and blogs and the internet are their new distribution and sales channels. Want to cut off your noses to spite your faces? Fine. Here's the knife."
Protecting big media
By contrast, Warner Music decided this week to make its music video library available to YouTube - perhaps marking a change in how media deal with these sites.
For the average user, such sites make uploading content a breeze. They're less good at making terms and conditions (Ts & Cs), governing what you upload, transparent. Written by lawyers, they seem principally to protect big media's options.
Singer Billy Bragg protested last month ("Who owns the music, MTV or me?" August 31 2006) that sites like MySpace and MTV Flux were hijacking peoples' creative output. That got MySpace to rewrite the Ts & Cs. People posting content are informed they retain ultimate ownership, but have given MySpace a licence to use content without payment. The Ts &Cs also specify the licence "will terminate at the time you remove your content". MySpace agrees the licence does not grant it the right to sell the content, nor to distribute it "outside of MySpace services".
Bragg lauded the changes to MySpace's contract and re-uploaded his music. He has been less thrilled with MTV Flux, calling (in a video blog) for a revamp. The company has so far refused.
"I don't think our Ts & Cs are any more strict than anyone else's out there," says Nayeem Syed, vice president of legal for MTV Networks UK & Ireland. When pushed, Syed admits people who upload to MTV Flux forfeit payment and relinquish their rights "in perpetuity". That is, forever. Removing your content doesn't revoke MTV's right to use it.
MTV holds the right to "commercially exploit, host, store, copy, distribute, modify, edit, incorporate into other material, and/or otherwise treat in any way" content. Providers to MTV Flux also waive "moral rights" to material - a lawyer's way of saying MTV does not have to give the author credit. MTV doesn't plan to be quite so tough as its terms allow. It does identify content creators, and if you leave MTV Flux, you need only give MTV seven days' notice, as content might have been scheduled to air on an MTV TV channel or mobile service.
Syed admits to a "balancing act" between protective language, and what MTV might actually do in certain situations; clearly MTV is already commercialising user-generated content, because both the website and the TV channel take advertising. Next month MTV plans to launch its first advertiser-supported UGC TV show. "We want to make sure we have the rights we need and we are also trying to future proof them for stuff we don't know about yet, but we are not the bad guys," says Syed.
There are new and revolutionary approaches to licensing content. The BBC and Channel 4 chose Creative Commons (creativecommons.org) licence regime, designed to encourage sharing and "make the value of the content flow better," says Anthony Lilley, head of Magic Lantern, the digital media company that runs C4's Fourdocs site for budding documentary makers. "I think Creative Commons works much better when you are talking about the web and loads of people making and sharing content because you need a truly frictionless system," he says.
However, MTV's Syed say she is "not confident" a Creative Commons licence is "practical", if an artist wants to "get noticed or get a record deal". The bottom line seems to be that MTV, and likely other big media companies, feel more comfortable with more traditional licensing language.
MTV Flux and Trouble's Homegrown see user-generated content as a path to new talent. "We are trying to raise the bar on UGC, taking our 25 years' experience in television and music TV and tying the UGC clips together with real music videos to make more interesting television," says Angel Gambino, vice president of digital media for MTV Networks UK & Ireland. "We'd like to get to the stage where we can commission content from people and pay them directly." But Gambino is clear that it is MTV's decision when and if the company decides to commission someone to make content. "We won't change our T's & C's, but we could contact those people directly and enter into a separate negotiation with them."
In the future, Gambino envisions a "digital farmers' market" where MTV could let people sell their content to others. But "we're not there yet", she admits. "There are some entertaining clips up there, but not the volume that we need to make a commercial model. Hopefully, we'll get there."
Celia Taylor, channel controller at Trouble and Challenge, says that media companies have to protect themselves with tough terms and conditions to avoid copyright infringement cases, but that this has to be weighed against the popularity of sites such as YouTube and MySpace, which are popular because they are "so open and so free".
"Once you try and close them down, they change," says Taylor. "It's usually the lawyers that spoil it because they want to make things safe and also they want to make money. But we are trying to also be guided by what the users want to do.
"And if Chico Bongalar gets really popular and I decide to make a UGC show fronted by him, I would expect to pay him. I think talent will win out. If you make a name for yourself and you're good, a Disney or someone will come along and make an offer."