Losing your rights to your professional portfolio

Many creative professionals give up their rights to their professional portfolios when they sign employment contracts without realising it.

This article was inspired by a discussion with a colleague about creating and protecting a professional portfolio. One of the challenges facing creative professionals is building and maintaining a current portfolio for future reference. In this particular conversation, we discussed whether someone could include work produced while employed in a professional portfolio?

I suggested that he import his blog posts and articles from various sources into his Medium profile using the “Import story” feature. It got me thinking about the copyright implications of doing that so I did a little research.

Your employment contract is your first challenge

It turns out that, as an employee, you probably gave up your rights to your writing. Many employment contracts have clauses like this:

Employee acknowledges that any original works of authorship s/he creates, whether alone or jointly with others, within the scope and during the period of employment with Company, shall be deemed a “work made for hire” as defined by the United States Copyright Act and are protected in accordance therewith. To the extent that such work is not, by operation of law, a work made for hire, Employee hereby transfers and assigns to Company all his/her right, title and interest therein, up to and including copyright.

There is often another clause that deals with something called “moral rights” which the contract may require the employee to waive or otherwise give up.

For writers who put a huge amount of effort into their work and take pride in their literary brilliance, clauses like this are analogous to amputations and this is why:

  1. The “work made for hire” clause has the effect of saying that your brilliance which you create as an employee actually belongs to your employer and you don’t have any rights to it from the moment you start populating that blank screen.
  2. If your contract has a clause that requires you to waive your “moral rights”, that basically means you give up your right to be known as the author of your professional work.

The effect of these kinds of clauses is to take your work from you and create a fiction that you didn’t create it and a legal fact that you have no rights to do anything other than admire it from afar. It limits what you can add to your professional portfolio because clauses like this limit –

  1. What you can claim credit for; and
  2. What you can republish without permission from your employer.

In other words …

You didn’t write this, it isn’t yours, just keep working

How you can salvage your professional portfolio

There are other options for building your portfolio which could work. One option is to simply point to an author page of the company blog that lists your articles by author (if you have that option). You could create a collection of links to “your” articles that implies that you are the author of those marvelous works.

The best way to avoid this situation is not to sign a contract that contains those legal scalpels. At the very least, hold on to your moral rights so you can publicly assert that you wrote those works.

Best case scenario

You negotiate clauses that give your employer co-ownership of your work (most employers would insist on this level of control) while retaining co-ownership yourself. That gives your employer the security of knowing it can do what they want with your work (because, after all, it is paying you to write that stuff) and you have the rights to do stuff with it all too, such as include it all in your portfolio.

Don’t assume you have the rights

Unfortunately many of our preconceptions about our rights to our work are misinformed and many creative professionals routinely give up their rights to their work when they sign their employment contracts. The power dynamics are usually against you and you may feel you have little choice but to agree if you want the job.

At the same time, it is a good idea to do the following if preserving your professional portfolio is important to you:

  1. Read your contract and identify the clauses that relate to your rights to your work.
  2. Discuss the clauses with your (prospective) employer and negotiate better terms before you are too far down the road.
  3. If you find you have little choice, be mindful of the clauses’ scope and ensure that the clauses don’t encompass your otherwise unrelated work simply because you don’t make clear distinctions between work and non-work stuff.
  4. Most importantly, don’t assume that you have no say whatsoever. The little secret is that most things tend to be negotiable to a degree.

This article was originally published on Medium on 2015-12-25 as “When you signed away your rights to your writing

A developers’ guide to GPL

If you are looking for a clear developers’ guide to GPL, Richard Brest has published a terrific guide to GPL with WordPress developers in mind.

Richard Best has a terrific guide to GPL for WordPress developers along the lines of the famously simple “human readable” Creative Commons license explanations on his site, WP and Legal Stuff, in his post titled “A human readable summary of the GPL“. He actually has two versions, both of which are worth taking a look at. I like his version modelled on the CC license explanation format:

A human readable summary of the GPL by Richard Best
A human readable summary of the GPL by Richard Best

Best has also published “A Practical Guide to WordPress and GPL” and it is available in three packages. The top package is the “business package” which includes –

access to a terms of use builder through which you can build draft online terms of use for your WordPress commercial themes or plugins shop, with open and honest GPL licensing as well as protections for your business.

The terms of use builder isn’t exactly revolutionary but what I like about it is that it is designed for a specific niche: WordPress theme and plugin developers who license their products under GPL. Best also released a demonstration video which reveals a nice, clean interface and a great looking end result. You’ll have to view the video either in his blog post or the promo page for the ebook packages.

The standalone ebook option is a little pricey at $25 for the PDF but if you consider the cost of legal advice on the topic, it is probably worth it.

Image credit: Light Reading by Martin, licensed CC BY 2.0


 

This article was originally published on Paul Jacobson’s blog on 2015-08-10

Which contracts photographers should consider using

Which contracts your clients should sign

A photographer asked a great question about contracts recently:

I would like to redo my contracts. Would like to know what do you get clients to sign before a shoot?

Disclaimer: This note is a fairly broad overview of many of the major themes you, as a photographer, should think about and which contracts photographers should sign with their clients. It isn’t legal advice or even the best advice for all photographers. It should give you a more informed starting point for a further discussion with your lawyer.

There are two key documents that you should have. The first is a contract governing your services and the other is some sort of privacy statement.

Services contract

The services contract needs to cover a number of themes both for clarity and to make sure you address your common risks. I also refer to services contract provisions as “terms and conditions” in this note.

For starters, use clear, well defined terminology is really important. It may seem pedantic but clearly defining key terms is essential for a clear and intelligible contract which, in turn, is more likely to be enforced if you ever have to test it. Obviously the content of the contract is very important but a contract written in confusing language can be very difficult to understand and enforce effectively. You typically include this terminology in a glossary in your contract.

Your services contract must obviously deal with your services, how you will communicate them and what you will charge for them. Think about issues like scope creep (where your services change without necessarily agreeing on the changes specifically) and amending your pricing as your scope changes. The model I prefer is to use a standard set of terms and conditions that refer to a separate booking form (that can be an online form or a paper form that your client signs) instead of preparing a lengthy contract that contains all the variables such as client details, services required and pricing. The booking form model that refers to the terms and conditions is less intimidating even though the terms and conditions, themselves, will be fairly detailed to make sure you deal with all the important themes.

One issue which comes up frequently in photographers’ groups is a cancellation fee. The Consumer Protection Act enables clients to terminate advance bookings subject to reasonable cancellation fees. Define those in your contract and set cancellation periods which may attract varying fees. For example, you may agree that if the client cancels a shoot 3 months before, the client will pay Rx; 1 month before, the client will pay Ry and 2 weeks before, the client will pay Rz. This will depend on your booking lead times; whether you can replace that booking and other similar factors. You will also need to align these cancellation fees with the Consumer Protection Act’s mechanisms and intent.

As a photographer the licensing aspects of your work are critical. The Copyright Act generally recognises your clients as the owners of the copyright in your photos if they commission you to do the work and agree on a fee for that work. This is good for your clients because they have more control over your deliverables but you have to consider what you will need to do with the photos. Because, by default, you are not the copyright owner in this context, you are not entitled to share the photos as part of your portfolio, restrict what your clients can do with the photos and exercise much other control over the photos’ use.

The Copyright Act gives you a way to change this default position. You can agree with your client to opt-out of the default copyright ownership mechanism in your contract. It is pretty straightforward but you need to include that in your contract. You may also want to think about including a mechanism in your contract which enables you to withhold your deliverables if your client fails to pay you, for example. This would be a separate clause in your contract.

Other clauses you’d include in your contract would be –

  • fees and payment;
  • privacy (linked to the privacy statement which I discuss below);
  • dispute resolution;
  • breach and the consequences of a breach;
  • termination;
  • common no-variation and similar clauses; and
  • domicilium clauses which can be pretty useful for different situations.

Booking form

A booking form is a convenient way to sign a client. Here are a few things to include:

  • Client details (name, contact details, address details);
  • Shoot details (date, times, locations);
  • Fees due (linked to specific deliverables), including deposits due;
  • Your specific deliverables;
  • Cancellation fees (you can include these in your terms and conditions but including these in your booking form makes them more prominent and confusion less likely);
  • Your details;
  • Express confirmation that your client agrees with your terms and conditions and privacy statement;
  • Signature and date fields (the form these will take if you use online forms can vary).

Privacy statement

As a photographer you are dealing with a lot of personal information. Using personal information often requires permission from the people the personal information relates to and the way you obtain this permission is a privacy statement (also known as a privacy policy or data protection policy).

As a starting point integrate your privacy statement with your services contract so when the client agrees to the services contract, s/he also agrees to the privacy statement.

Broadly speaking, the privacy statement must deal with these broad themes:

  • what personal information you will collect and from which sources (for example, automatically through your website, personal information your client volunteers through your booking form or contact forms and so on);
  • what you will do with that personal information (remember to include adding photos to your portfolio or Facebook page for marketing purposes, for example);
  • under what circumstances you may disclose personal information to third parties (these third parties may include your vendors for printing; law enforcement and other legal authorities); and
  • where you store personal information and, broadly, measures you take to secure the data (this will often mean identifying your hosting provider, especially if you use foreign hosting providers and will be transferring personal information across borders).

You will probably include other people in your photos (especially if you do functions and have the usual group photos) who have not signed your contracts. You should require your clients to obtain permission from people they want included in these group photos to be included and their agreement with your data practices which are explained in your privacy statement. How you do this can vary. You can prepare releases for subjects to sign and have them sign in advance or on the day or you can prepare something for your clients to have these participants sign. This can be a cumbersome process so consider the process with the least friction and which still results in permission from these subjects to take photos of them and use those photos for different purposes.

This is more important if you intend publishing photos on public platforms (for example, Facebook). Simply taking photos, making prints and handing these to your client probably won’t require you to go to these lengths because a subject who poses for a photograph clearly consents to being photographed. You’ll need to use your discretion.

It is very important to be sensitive about photos of children. You are not permitted to take photos of children and share them without their parents’ advance permission so make sure you obtain clear consents when it comes to children.

Get it in writing

If you capture the terms of your agreement with your clients in writing, you take huge strides towards reducing the likelihood of confusion and disputes. A written contract can be printed on paper. It can also be digital and part of an email or published on a website. Find the best medium for you that strikes a balance between clearly conveying your contract terms and being relatively accessible and convenient for your clients.

I have prepared a service contract and privacy statement for photographers which I’ve since updated. These two versions should give you a fairly decent idea of what your contracts could look like.

No, you can’t unilaterally opt out of Facebook’s terms and keep using it

Facebook has updated its terms of service and data use policy recently and the changes have upset many people. I’ve started seeing more declarations of users’ intention to opt-out of provisions of Facebook’s terms and conditions. These sorts of declarations seem to be legally binding with their fairly legalistic language but they don’t work except to help you feel better.

The only way to limit what Facebook can do with your content and your personal information is to stop using Facebook and to delete your profile. Unilateral declarations of your intention to opt-out of provisions you don’t agree with don’t make those provisions less binding on you.

If you use Facebook, you do so on Facebook’s terms. If you don’t want to be bound by those terms and conditions, stop using Facebook.

No photos of Cape Town Stadium, please, it’s protected

You may have heard that photographers are not permitted to take photos of Cape Town Stadium. The issue came up at the 2014 Advertising and Marketing Law Conference and I asked IP attorney, Hugh Melamdowitz, about the ban.

It turns out that copyright in the architectural drawings of the stadium were assigned to the City of Cape Town and the City’s ban on photos of the stadium are basically based on copyright protection. Commercial photos of the stadium will fall foul of the City’s rights. On the other hand, if you take photos that qualify for fair dealing protection under the Copyright Act (for example, for your personal use) then you should be able to sidestep the prohibition.

The reason for this (and similar) bans is probably to protect revenue the City earns from tourism involving the stadium. I don’t agree with the strategy, I believe that allowing people to take photos of the stadium (commercial or private) and sharing those photos widely will only encourage more tourism and more revenue from that tourism derived from ancillary products and services.

Another possible excuse for a photo that includes the stadium is if the stadium is incidental to the photo as a whole. Drawing a clear line between incidental inclusion of the stadium and taking an otherwise prohibited photo of the stadium will likely be pretty tricky.

Next time you are in Cape Town, bear this prohibition in mind if you intend taking photos you’d like to sell some day. Perhaps focus your attention on other aspects of the city and its environs, just to be on the safe side.

4 tips for developers selling software

Say you’re a software developer and your customer wants to buy your app, do you know what you should be thinking about when selling software? Here are a few contract tips:

Can you legally sell your app?

Unless you have developed the code for the app from scratch and haven’t used any previous code of your own or any third party code, your app is likely to be a composite of code you’ve written in the past for other projects and which may even form part of your general toolkit.

You may also be using code from other developers which could be licensed under a variety of licenses, including open source licenses like GPL and BSD.

When you sell something, you generally transfer all the rights in the thing to the purchaser. You have to have the rights to transfer in the first place and if you don’t own all the rights in that thing you are selling, you can’t really sell it to someone else. If you attempt to do that, you’ll find yourself with a contract you are legally unable to comply with and that is a problem.

Tip 1: Check the rights you can transfer in a sale first.

Know what you are selling

This sounds pretty obvious but it’s a more complicated question that you may have thought. From your perspective you’re selling your app but what is that app, really? Are you selling the finished product alone or does your customer want the source code too?

Many software purchasers want the source code because they are concerned that if they don’t have the source code, they could find themselves in a pickle if the app breaks and they can’t reach you to fix it. It is basically a business continuity concern and the more your customer relies on the app to operate its business, the more important have access to the source code will be.

The challenges with selling the source code include disclosing your secret coding sauce that makes your code so valuable. Those trade secrets could give your customer or even a competing developer who encounters the code later an additional competitive edge over you. Another challenge is that selling your source code outright could have an impact on other projects which leverage elements of that source code because you will have far fewer rights to use that code once it is sold. This means you have to consider the impact on your obligations towards existing customers too.

Tip 2: Carefully consider precisely what you are selling and what the implications are of selling it to your customer.

Clearly define what you are selling

This also sounds obvious but it isn’t. In your mind you are selling an app but how would a person outside the deal be able to identify what you are selling, objectively? Is the app totally self-contained and in a box that can be easily identified? Chances are it may be a bit more complicated than that.

The reason why you need to be able to clearly define what you are selling is twofold: your contract needs to be clear on this and your customer’s expectations of what it will receive from you must correspond with your understanding of what you are selling.

How you define your app may depend on the nature of the app but here are a couple ideas:

  • Include detailed and app-specific functional specifications;
  • Depending on the app, possibly use a hash derived from the app’s code as a sort of fingerprint to identify it;
  • When describing the software’s functionality, avoid generic descriptions that could apply just as easily to software you are not selling;
  • Consider versioning your software and referencing specific versions being sold, if appropriate.

Tip 3: Define or describe the software being sold very clearly to avoid any confusion later.

Consider alternatives to an outright sale

A sale may not be appropriate because of its implications. Often a license agreement meet your customer’s requirements and help you avoid the problematic consequences of a sale so don’t be afraid to suggest that instead.

Licenses can be customised to suit most requirements and can, for example, be exclusive to the customer. The benefit of that sort of license is that the customer has the comfort of knowing you won’t make that software available to someone else and you retain enough rights to meet your other obligations.

If you go ahead with a sale and your customer insists on source code too, consider placing the source code in escrow with a trusted escrow agent with specified conditions which would trigger the source code’s release. Those conditions may include your business closing, you and your team failing to respond to requests for support for a period of time or some other set of conditions that would address your customer’s concerns.

If you sell your source code along with your app and you require elements of the source code to meet existing obligations to other customers or based on other licenses you agreed to, you may want to make sure you either withhold certain rights for yourself or license what you need back from your customer as part of the deal.

Tip 4: A sale may not be the best deal type and even if it is, this isn’t a one size, fits all approach. Customise the deal to suit everyone’s requirements.

Law is code too

Just because your sale agreement is a legal construct doesn’t mean similar rules you apply to your code don’t apply. Work with your lawyer or legal advisor to develop a contract that works properly and doesn’t leave you with bad dependencies and worse consequences.

Look at your contract as an app in its own right. Does the code make sense and does it function effectively given all the constraints and requirements?

Update (2014-06-10): Something else to bear in mind is the new VAT on digital goods sales. Developers who make more than R50 000 will have to register with SARS to pay VAT. It’s a pretty low revenue threshold.

Take a look at this article on MyBroadBand titled “Get ready for VAT on e-books, apps, digital music” for more information about how this affects you.

What “public domain” really means

Have you ever caught yourself arguing that you can use some content you found on the Web because it is in the “public domain”? Don’t feel silly if you have even though you likely misunderstood what the term “public domain” means as a legal term which is very relevant to content use.

Fountain Square in Downtown Cincinnati Is a Public Square That Works for the City and Its People in a Myriad of Ways: Sale of Donated Books for Benefit of Cincinnati and Hamilton Public Library 06/1973

Have you ever caught yourself arguing that you can use some content you found on the Web because it is in the “public domain”? Don’t feel silly if you have even though you likely misunderstood what the term “public domain” means as a legal term which is very relevant to content use. Before I explain what “public domain” means, you first need a copyright refresher.

Copyright in a nutshell

Copyright is essentially a bundle of exclusive rights a copyright owner has in content. A copyright owner’s exclusive rights usually include –

  • reproducing the content;
  • selling the content;
  • publishing previously unpublished content;
  • transmitting content; and
  • creating adaptations of content.

As a general rule, someone who doesn’t have the copyright owner’s permission can’t exercise those rights. There are exceptions to copyright infringement and one of the better known set of exceptions is known as “fair dealing” in South African law. Aside from that, you need the copyright owner’s permission to use her content. One way you can obtain permission is through a license which is basically a set of permissions.

If you’d like to dive into South African copyright law and many of its challenges, the 2008 Open Copyright Review is a good place to start (I made a small contribution). The Open Copyright Review introduces copyright law slightly differently and with a useful perspective:

Copyright is a right created by the Copyright Act, to give exclusive rights to an intellectual creation. Because it excludes people from certain uses, the rights are referred to as exclusive rights. Copyright is a statutory incentive scheme. Copyright law gives exclusive rights, usually to the creator of an intellectual creation, so that she can allow others to make copies or modifications of the intellectual creation in exchange for money or some other benefit. The primary benefit conferred by a property right is the use and enjoyment of the property such as a car, rather than the ability to exclude others, although it might necessitate the exclusion of others only in order to secure use and enjoyment of the car. However intellectual property rights consist solely of the right to exclude others.

Copyright protects “works” and different works enjoy protection for different time periods. Copyright term in South Africa is usually 50 years which runs from different dates depending on the nature of the work. For example, copyright in a book operates for the author’s life and for about 50 years after the author’s death. Other countries may have different copyright terms and this can be both troubling and controversial. The United States has extended copyright protection terms so much that very few works are actually falling into the public domain (a tease). This is problematic. Copyright is not intended to protect works forever but is rather supposed to be used to protect innovation and creativity for a limited time period after which time they are to be surrendered to the broader Commons for everyone’s benefit. Unfortunately copyright protection has been corrupted by content owners but that is another discussion entirely.

Public domain

When a work reaches the end of its copyright protection, it loses that protection and falls into the public domain. The Creative Commons wiki has a nice explanation of what the “public domain” is and how it works:

When a work is in the public domain, it is free for use by anyone for any purpose without restriction under copyright law. Public domain is the purest form of open/free, since no one owns or controls the material in any way.

The US Copyright Office has another helpful explanation:

The public domain is not a place. A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.

What “public domain” means is that the work’s copyright protection term has expired and the copyright owner’s rights have similarly expired. The work is then freely available for anyone to use in any way. This is different to content licensed under open licenses like Creative Commons licenses (this came up recently in the Woolworths hummingbird controversy) where those works still enjoy copyright protection but the copyright owner has chosen to grant fairly broad licenses permitting other people to use the works in different ways.

If you have found content online, the odds are that the content is not in the public domain, even if it is publicly accessible. You still have to check whether it is licensed for your intended use. The general rule is that if you don’t see any indication of how content is licensed, you have to assume the copyright owner has reserved all of her exclusive rights for herself and your ability to use that content is limited.

Fortunately search engines generally have options to search for content that is available under more permissive licenses in advanced search. Here are Google’s search options, for example:

Another terrific resource for images is Flickr Commons which is a growing collection of images which are in the public domain and have been made available to Flickr for its users’ benefit.

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p>Creative Commons has also come up with a way for copyright owners to release their works into the public domain before their copyright protection terms have come to an end. It isn’t so much a license as it is a renunciation and it is an interesting approach.

Using Netflix in South Africa is illegal

South Africans continue to be frustrated by the paucity of legitimate and convenient TV and movie download or streaming options. At the moment DSTV and a limited South African iTunes store are the primary options. Unfortunately this doesn’t seem to be enough so more and more consumers are looking to popular video rental service, Netflix, for their entertainment needs. The problem is that Netflix content isn’t legally available in South Africa and its likely for the same reason that the local iTunes store lacks TV and some movie content: licensing restrictions.

South Africans continue to be frustrated by the paucity of legitimate and convenient TV and movie download or streaming options. At the moment DSTV and a limited South African iTunes store are the primary options. Unfortunately this doesn’t seem to be enough so more and more consumers are looking to popular video rental service, Netflix, for their entertainment needs. The problem is that Netflix content isn’t legally available in South Africa and its likely for the same reason that the local iTunes store lacks TV and some movie content: licensing restrictions. Brett Haggard, writing for htxt.africa a week or so ago, pointed this out:

Right now, we’re told by inside sources at the big pay TV service providers on the continent (take a guess who, I mean, there aren’t all that many to choose from) that the digital rights for the popular television series we all crave so badly haven’t been signed, sealed and delivered to any one party as yet. Our sources tell us that, should anyone express any interest in bringing that content to the continent in a digital form, the big pay TV service providers will have the first shot at the action, in effect blocking the attempts of other players to get their hands on vital content licenses.

What this means is that the only legitimate means of obtaining much of the TV content (and probably the movies missing from the South African iTunes store) is through the local pay TV providers. The reason is what appear to be exclusive or pre-emptive content licensing deals the local paid TV providers have struck with the content producers or distributors. In many respects, this is the same issue we faced when the iTunes store was not yet available in South Africa (or, at least, where certain content or channels are not available here) and which I wrote about in my 2009 post titled “Legalities of US iTunes Store vouchers in South Africa“:

What does this mean? Well, the license granted to users is the set of permissions that give users the lawful right to consume that content. This is primarily a copyright issue. The content available in the store is owned by 3rd party content creators, publishers and other rights holders. They own the content and, through a license, grant users the right to consume the content.

So, for example, a music company owns the rights to an album that is available for sale in the iTunes Store. This means it likely owns copyright in that album and the bundle of rights that give it the exclusive rights to do various things with the content. In the absence of a license from the music company, you may not do much with the music. The license contained in the iTunes terms of service grants you permission to buy the album and consume it. In this case the license comes from Apple which was, in turn, licensed by the music company to sell the album to you under the license in Apple’s terms of service. It is a little complicated but the bottom line here is that the license in the iTunes terms of service is a series of permissions and restrictions. One of those restrictions is the geographical limitation of the iTunes Store’s availability. What that means is that if you purchase content from the iTunes Store in violation you are doing so in breach of the license and that, in turn, is a breach of copyright and is illegal. It is also a breach of your contract with Apple in the form of the terms of service and Apple could effectively cut your access to the Store and potentially the content you purchased from the Store.

Netflix users face a similar challenge and for similar reasons. The document which governs much of a Netflix user’s service use is the Netflix Terms of Use which begins with the following:

Welcome to Netflix! We are a subscription service that provides our members with access to motion pictures, television and other audio-visual entertainment (“movies & TV shows”) streamed over the Internet to certain Internet-connected TV’s, computers and other devices (“Netflix ready devices”).

These Terms of Use govern your use of our service. As used in these Terms of Use, “Netflix service,” “our service” or “the service” means the service provided by Netflix for discovering and watching movies & TV shows, including all features and functionalities, website, and user interfaces, as well as all content and software associated with our service.

These Terms of Use cover a broad range of issues relating to your service use but if you skip to about halfway down, to section 6 titled “Netflix Service”, you will read these key clauses (parts c, e and f, respectively – I have highlighted the key sections):

You may view a movie or TV show through the Netflix service only in geographic locations where we offer our service and have licensed such movie or TV show. The content that may be available to watch will vary by geographic location. Netflix will use technologies to verify your geographic location. YOU MAY WATCH ON UP TO SIX UNIQUE AUTHORIZED NETFLIX READY DEVICES AND THE NUMBER OF DEVICES ON WHICH YOU MAY SIMULTANEOUSLY WATCH IS LIMITED. Go to the change plan information in the “Your Account” page to see the number of devices on which you may simultaneously watch. The number of devices available for use and the simultaneous streams may change from time to time at our discretion without notice.

You agree to use the Netflix service, including all features and functionalities associated therewith, in accordance with all applicable laws, rules and regulations, including public performance limitations or other restrictions on use of the service or content therein. You agree not to archive, download (other than through caching necessary for personal use), reproduce, distribute, modify, display, perform, publish, license, create derivative works from, offer for sale, or use (except as explicitly authorized in these Terms of Use) content and information contained on or obtained from or through the Netflix service without express written permission from Netflix or its licensors. You also agree not to: circumvent, remove, alter, deactivate, degrade or thwart any of the content protections in the Netflix service; use any robot, spider, scraper or other automated means to access the Netflix service; decompile, reverse engineer or disassemble any software or other products or processes accessible through the Netflix service; insert any code or product or manipulate the content of the Netflix service in any way; or, use any data mining, data gathering or extraction method. In addition, you agree not to upload, post, e-mail or otherwise send or transmit any material designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the Netflix service, including any software viruses or any other computer code, files or programs.

The availability of movies & TV shows to watch will change from time to time, and from country to country. The quality of the display of the streaming movies & TV shows may vary from computer to computer, and device to device, and may be affected by a variety of factors, such as your location, the bandwidth available through and/or speed of your Internet connection. You are responsible for all Internet access charges. Please check with your Internet provider for information on possible Internet data usage charges. Netflix makes no representations or warranties about the quality of your watching experience on your display. The time it takes to begin watching a movie or TV show will vary based on a number of factors, including your location, available bandwidth at the time, the movie or TV show you have selected and the configuration of your Netflix ready device.

In other words:

  • Content availability is limited by geography (almost certainly because of the sorts of licensing deals Haggard alluded to in his htxt.africa article);
  • Netflix will use verification technologies to confirm you are in the country you say you are in (this is to help Netflix ensure it complies with its licensing obligations to its content providers);
  • You agree not to circumvent measures Netflix puts in place to limit access to its service or to make use of the content other than as permitted by these Terms of Use;
  • As we have seen with the local iTunes store, the range of content that is available in different regions will vary from country to country.

As with iTunes, there are ways to circumvent Netflix’s technologically-enforced geographical restrictions but having the capability to access Netflix’s content doesn’t equate to permission to access it. If you lack permission to access the Netflix content you lack a license to access that content and unlicensed or unauthorised access to the Netflix content is copyright infringement. In legal terms, this is tantamount to torrenting the content. The main difference is that consumers who go to the lengths of spoofing their locations to sign up to use Netflix are, at least, paying for the content. That should count for something but it doesn’t change the legalities of not complying with Netflix’s Terms of Use.

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p>If you are accessing Netflix from South Africa, you are infringing copyright and likely to be branded a “pirate”. At least you’re paying.