Who owns the copyright in user generated content?
The position on user generated content is no different from the general position.
The first owner of the copyright is usually the author, artist or creator, unless the work is a literary, dramatic, musical or artistic work created in the course of employment, when the employer will be the first owner unless the employee and employer have entered into an agreement to the contrary.
Often content is made up of a number of elements that are protected or capable of being protected by copyright or other intellectual property rights - software, data, text, images and graphics, branding etc. Some of this may be pre-existing and sometimes owned by a third party but incorporated by the user in the content posted to the website.
The copyright in the pre-existing third party material will belong to the third party and not to the user generating the content. Its publication on the website may be an infringement of the third party's rights unless the user has taken the trouble to obtain consent for its incorporation in the content and its posting on the site. Please see the item below on how web operators can help avoid being sued for publishing third party material.
If the website operator wishes to own the user generated content it will need to take an assignment (transfer of ownership) from the copyright owner(s). Note that where the content includes third party material, the owner of that material will not be the user generating the content. In those circumstances it will usually be unrealistic to expect to secure an assignment from the owner.
Does it make a difference if the operator of the website to which the content has been uploaded has paid no consideration to the originator of the content/user of the website?
No, the position on ownership remains the same.
Does use of the website constitute consideration?
Consideration does not need to be financial; it may be a promise or something given in return, but whether or not there is consideration does not change the position on ownership.
What use can the website operator make of user generated content apart from publishing it on the website? Would there have to be express terms in regard to such use?
The operator should enter into an agreement with the person who has created the content and that agreement should specify the use the operator may make of the content.
In the absence of any agreement, provided it is clear that the user generating the content is providing it of the purpose of it being published on the website, the likelihood is that the website operator will have an implied licence to publish the content on that site. But the position will not be absolutely certain.
In the absence of an agreement giving the operator specific rights to use the content for other purposes, it is unlikely that the operator will have any right to use the content for any other purpose or in any other context.
What else should website operators be thinking about?
Moral Rights exist separately from the copyright in a work.
The author of a literary work (except a software program or a computer-generated work), or of a dramatic, musical or artistic work, or of a film, has the right to be identified as the author provided he has asserted that right. In practice this usually involves the author asserting the right in writing when assigning the copyright in the work or entering into an agreement for the publication of the work.
Authors of these sorts of works also have the right not to have their work submitted to derogatory treatment. This includes any addition, deletion, alteration or adaptation of the work that distorts or mutilates it, or that prejudices the author's honour or reputation. It isn't necessary for the author to assert this right.
Authors also have the right not to have a literary, dramatic, musical or artistic work or a film falsely attributed to them.
Whenever this sort of work is included on a website, there is a possibility of infringing moral rights even if copyright is not infringed. So, if you want to use someone else's work, obtain a waiver or consent from the individual contributors.
Images made for domestic and private purposes
Even though the copyright may belong to the photographer or the film maker, individuals whose photographs are taken for private purposes have the right to prevent those images being used for any other purpose without their consent.
Data Protection and Privacy
Including personal details or the image of an identifiable individual on a website is processing personal data and you should obtain the consent of the individuals concerned (who may well not be the person who generated the content).
The Press Complaints Commission has upheld a complaint against the Hamilton Advertiser complaining that the publication on its website of a video of her classmates made by one school girl was in breach of the Article 6 of the PCC Code protecting the privacy of children.
Liability to Third Parties
No matter what disclaimers you may include on your website or in your agreements with users, they will not be effective against third parties. If the content defames a third party or if it includes copyright material and the copyright owner has not given permission, the third party/owner will be able to bring a claim against you. Please see the item how website operators can help to avoid being sued for publishing third party material.
If you would like further advice about any of the issues considered above please contact Christine Reid on 01865 864195 or email her at firstname.lastname@example.org
This article is not intended to be, and should not be taken as being, legal advice. The law often changes and it varies from jurisdiction to jurisdiction; the information in this article is generic in nature and specific legal advice should be taken before acting on any of it.