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

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.

What you should not share online

​The social Web encourages sharing but sometimes we share too much. This post gives you an idea of what to look out for and, perhaps, what not to share.

I received an email from Nadya, a Canadian student, who is researching how people express themselves online and she posed a few questions which I answered in a recording. This is related to my previous post titled “What you can legally say on Twitter” which I published in the aftermath of the Oscar Pistorius tweetstorm. I go a little further than defamation and also talk a little about privacy concerns and content sharing. The important thing to bear in mind is that just because you are using the social Web to express yourself, it doesn’t mean that what you say and share won’t have very real consequences for you and people close to you.

Instagram’s new content license (it still doesn’t own your content)

Rian van der Merwe posted a tweet asking me to comment on the changes to Instagram’s Terms of Service:

Rian posted the new license from the terms on his one blog and I took a quick look at it (I am in a lock-down here at work so I haven’t had time to review the full terms for this post). The new license states the following:

Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the Instagram Services. By displaying or publishing (“posting”) any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly (“private”) will not be distributed outside the Instagram Services.

Rian’s (and, I’m sure many other people’s) concern is nicely summed up in the rest of his post:

Here’s my non-lawyer interpretation:

We don’t own your stuff, but we can do whatever we want with it.

Which kind of sounds like it can be shortened to:

We own your stuff.

Any lawyers out there who can clarify what’s going on here?

Instagram logo 1The subtext here is that the Facebook acquisition has poisoned this popular service and Facebook is encroaching on Instagram users’ rights over their content. As Web services go, this content license is typical and hardly a land grab which it may be made out to be. As I mentioned in my previous post about the Google Drive license terms –

This clause clearly states that Dropbox doesn’t claim ownership of your data but the more important set of provisions are those dealing with the license Dropbox takes from its users when it comes to accessing and making use of the data you upload to Dropbox. Bear in mind that all of these services will have a license of some sort. A license is a set of permissions you, as the user, give to the provider and that enables the provider to receive, manipulate and otherwise handle your data. It’s an essential component and nothing to be alarmed by in itself (at least not if you are comfortable with the basic idea of a provider having access to your data as part of your use of the particular service).

Instagram’s license is fairly broad but it could be even worse. The license is basically designed to enable the service to operate. In the absence of a specific license Instagram could fairly convincingly argue that the permissions set out in this license would be implicit in the unspoken license users would grant to Instagram merely by using the service. In other words, when you use Instagram, the license provisions are implied by your use.

By comparison, here is the license Facebook takes from you:

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

What I find interesting about the Instagram license is that it is implicitly in favour of Instagram, Inc (the company behind Instagram); it isn’t transferrable and it isn’t even sub-licensable. This means the license is limited to Instagram and you don’t give Instagram the right to license your content to Facebook or any other party. The wording is a little unclear because the license gives Instagram the ability to distribute “part or all of the Site in any media formats through any media channels” and yet it doesn’t permit the content to be sub-licensed or to transfer the license to another party. This is probably a flaw in the license language because it is notionally problematic for anyone to consume other users’ posts in a way that would require those consumers exercising the user’s rights under copyright and which is not covered by an exception to copyright infringement like fair dealing or fair use.

Moving away from the legal geekery, the new Instagram license is not a land grab. It is a pretty reasonable license given the nature of the service and doesn’t equate to “We own your stuff”. Rather it’s more like “We can do things with your stuff to make Instagram work”.

Is Pinterest a den of copyright thieves?

Background

A debate whether Pinterest is flouting copyright laws by allowing its users to post, or “pin”, images and videos to the site is raging online. If you haven’t heard of Pinterest, it is one of the hottest new social networks that encourages users to share stuff they find on the Web. Pinterest’s focus is on images and videos and the service gives users ways to republish images on the site and categorise them in “Boards”. I found a great introduction video which explains the site with a series of demonstrations:

The site is enjoying tremendous uptake and once you start using it you can understand why. It enables people to create collections of ideas for their homes, brides use it to source inspiration for their weddings and share them with friends and so on. It is a truly social service but it relies on its users republishing 3rd party content to the site so questions about the copyright implications are understandable. One group of content owners who are particularly perturbed about Pinterest are photographers whose works are being published and shared on the site. Mike Masnick over at Techdirt believes this is not what photographers should concern themselves with and points to Trey Ratcliffe’s post (read this post for an expanded discussion about this) about the benefits of having his photographs “pirated” as support for his position that Pinterest’s benefits far outweigh any potential harm photographers may suffer by having their works pinned on the site:

Either way, his point is a strong one, and it’s really no different than what many people have made to reactionary folks in other parts of the content industry. You can spend all your time trying to kill innovation or stop people from doing what they want to do… or you can bask in the wonderment that people want to do stuff, encourage them to do so, and make it easier for them to help spread your works… all the while making it easy for them to support you. Ratcliff seems to be a perfect example of our discussion on the benefits of being open, human and awesome.

Exclusive rights

Regardless of the benefits of sharing more openly or even tolerating copyright infringement, content creators are entitled to protect their rights so the question remains what those rights are and whether Pinterest is either directly infringing copyright or is facilitating copyright infringement by its users? I’ll explore these questions in the context of South African copyright law which is largely governed by the Copyright Act, No. 98 of 1978.

Images and videos are categorised as “artistic works” and “cinematograph films”, respectively. Provided this content is original and reduced to a material form, it is generally protected by copyright. This means that the content’s copyright owner has a number of exclusive rights in and to that content –

Nature of copyright in artistic works.

7. Copyright in an artistic work vests the exclusive right to do or to authorize the doing of any of the following acts in the Republic:

(a)   Reproducing the work in any manner or form;
(b)   publishing the work if it was hitherto unpublished;
(c)   including the work in a cinematograph film or a television broadcast;
(d)   causing a television or other programme, which includes the work, to be transmitted in a diffusion service, unless such service transmits a lawful television broadcast, including the work, and is operated by the original broadcaster;
(e)   making an adaptation of the work;
(f)   doing, in relation to an adaptation of the work, any of the acts specified in relation to the work in paragraphs (a) to (d) inclusive.

Nature of copyright in cinematograph films.

8. (1) Copyright in a cinematograph film vests the exclusive right to do or to authorize the doing of any of the following acts in the Republic:

(a)   Reproducing the film in any manner or form, including making a still photograph therefrom;
(b)   causing the film, in so far as it consists of images, to be seen in public, or, in so far as it consists of sounds, to be heard in public;
(c)   broadcasting the film;
(d)   causing the film to be transmitted in a diffusion service, unless such service transmits a lawful television broadcast, including the film, and is operated by the original broadcaster;
(e)   making an adaptation of the film;
(f)   doing, in relation to an adaptation of the film, any of the acts specified in relation to the film in paragraphs (a) to (d) inclusive;
(g)   letting, or offering or exposing for hire by way of trade, directly or indirectly, a copy of the film.

Barring exceptions to copyright infringement (more about that below) and a license from the content owner granting permission to exercise these rights (more on this below, too), any exercise of these rights would likely be copyright infringement. Section 23(1) deals with this specifically and states the following –

Copyright shall be infringed by any person, not being the owner of the copyright, who, without the licence of such owner, does or causes any other person to do, in the Republic, any act which the owner has the exclusive right to do or to authorize.

Copyright infringement exceptions

At this point the law becomes a little tricky. The Copyright Act recognises a series of exceptions to copyright infringement. This means there are uses of copyright protected content which, but for these exceptions, would be infringing uses. I won’t republish the sections of the Act for the sake of some semblance of brevity but below are the principles which come out of the Act (this is not a complete treatment of these exceptions):

  • In respect of photographs –
    • personal or private use does not infringe copyright;
    • using the photographs for the purpose of reviewing or criticising them is similarly not infringing; and
    • “using such work, to the extent justified by the purpose, by way of illustration in any publication, broadcast or sound or visual record for teaching [is similarly not infringing]: Provided that such use shall be compatible with fair practice and that the source shall be mentioned, as well as the name of the author if it appears on the work”.
  • In respect of videos –
    • “using such work, to the extent justified by the purpose, by way of illustration in any publication, broadcast or sound or visual record for teaching [is similarly not infringing]: Provided that such use shall be compatible with fair practice and that the source shall be mentioned, as well as the name of the author if it appears on the work”.

Unlike artistic works, cinematograph films don’t carry the same exceptions that permit use for “personal or private use”. In the United States there is a broad exception called “fair use”. We don’t have fair use in our law but we do have “fair dealing”. That said, “fair dealing” is pretty much limited to literary and musical works (think print publications and sheet music).

Back to Pinterest

So what does this mean so far? Well, before you even look at Pinterest’s terms of use, you know that you can probably copy photos and publish them to Pinterest under the “personal or private use” exception for artistic works but the same doesn’t apply to videos. If you had permissive licenses to republish those photos and videos on Pinterest from the content creators that would resolve your dilemma but that would depend very much on where you get the photos and videos from (there is a wealth of content on the Web released under flexible licenses like Creative Commons but this has to be specified – your default is always that the copyright owner reserves all rights and that means you don’t have any).

Pinterest’s terms of service contain content licensing provisions. These provisions comprise the broad license users grant to Pinterest and licenses Pinterest grants to its users. The purpose of these licenses is to ensure that the site can continue to operate but the challenge is that the licenses are not always in line with the rights users have to use the content on the site. Here are the relevant provisions:

Pinterest Content and Member Content License

Subject to your compliance with the terms and conditions of these Terms, Cold Brew Labs grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access, view, download and print any Pinterest Content solely for your personal and non-commercial purposes. Subject to your compliance with the terms and conditions of these Terms, Cold Brew Labs grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and view any Member Content solely for your personal and internal business purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, Application, Services, or Site Content except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Cold Brew Labs or its licensors, except for the licenses and rights expressly granted in these Terms.

Member Content

We may, in our sole discretion, permit Members to post, upload, publish, submit or transmit Member Content. By making available any Member Content through the Site, Application or Services, you hereby grant to Cold Brew Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services. Cold Brew Labs does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.

You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to Cold Brew Labs the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Cold Brew Labs’ use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

In many instances it may be legally impossible for users to grant the license Pinterest takes from its users and for Pinterest to re-license that content back to users. Even where a photograph or video is made available under a permissive Creative Commons license, Pinterest’s license terms are at odds with those liberal licenses. What this means is that, in the absence of legally competent permissions, using the content on Pinterest could infringe copyright. This would seem to be the case with video content and with Pinterest’s use of photographs published to the site which are not licensed for that purpose. Users republishing photographs may be protected by the copyright exception I mentioned above.

Pinterest is aware of these concerns and published a post recently titled “Growing Up” in which the Pinterest team pointed out its efforts to comply with US copyright legislation and the “take down notice” procedure which gives rights holders the ability to have infringing content taken down –

With all that growth, we’ve gotten more questions from reporters and Pinners. In the past, we’ve been pretty quiet, but we want to get better about answering questions openly with people who are interested in Pinterest. We decided to start today by talking about copyright.

As a company, we care about respecting the rights of copyright holders. We work hard to follow the DMCA procedure for acting quickly when we receive notices of claimed copyright infringement. We have a form for reporting claims of copyright violations on our site here. Every pin has a flag to make reporting easier. We also know that copyright is a complicated and nuanced issue and we have knowledgeable people who are providing lots of guidance.

Pinterest also introduced a mechanism a little like the robots.txt mechanism where copyright owners can incorporate code into their content links to prevent Pinterest from pinning that content. This may or may not be much comfort for copyright owners but I find myself going back to Ratcliffe’s, Masnick’s and numerous others’ points about the benefits of sharing more openly and ignoring many infringing uses (sometimes even encouraging it). It comes down to whether a copyright owner is interested in exploring a more innovative model or prefers more control. Either way, there seems to be grounds for concerns about Pinterest and copyright infringement that don’t seem to have easy answers.

Looking to the left of copyright

I just watched a terrific video interview with Neil Gaiman in which he talks about his experiences with what some may consider piracy on the Web. His story is not new to me and a number of popular authors and artists have had similar experiences including Paulo Coehlo and Nine Inch Nails. The story is usually about an author or artist who releases his or her works on to the Web under a liberal licensing scheme or comes across pirated copies of those works on the Web. The result is often counter-intuitive: an increase in sales and popularity.

As an author or artist your work is your livelihood and the conservative approach is to restrict access to the work by reserving all rights under copyright law and clamping down on infringements. There is a lot of merit in this approach, for sure, but there are also a number of opportunities for those creators who are courageous enough to try something a little more open. Options include using Creative Commons licenses, more accessible purchase options and pricing strategies. I found Gaiman’s experiences in Russia to be particularly interesting. If I remember correctly, Coehlo had a similar experience in Russia, a country associated with music piracy websites and a disregard for copyright law.

Copyright law was originally and is still intended to foster creativity. What we find, in practice, is that Big Media (my term for the international music and movie industry) is engaged in a cold war against new business models and copyright infringers and, almost in keeping with George W Bush-style rhetoric, have made the choice consumers have one between supporting an aging and increasingly ineffective business model and supporting the “terrorists” (these people may be actual terrorists or something similar from Big Media’s perspective). Copyright law is currently being used to stifle creativity, frustrate consumers from legitimately purchasing content they want (the licensing limitations on music, movies, tv series and books which we see through iTunes Store and Kindle books availability is a manifestation of this approach) and manipulate governments to implement draconian penalties through draft treaties like ACTA.

This is not an argument against copyright law but rather its application by vested interests that are often at odds with creators’ interests. Content creators would do themselves a disservice by not exploring alternatives to the conventional model (sign with a label, publisher or equivalent body) and making informed decisions about what would be in their best interests as creators and business people. Rather than being intent on stealing content at the first opportunity as Big Media would have us believe consumers are (this characterization sounds a lot like racist rhetoric we have come across in South Africa), I firmly believe that consumers want to pay for content but it has to be at a reasonable price and through a convenient outlet. In the case of music, movies and tv series, that tends to be downloads for many people. When it comes to books, it is increasingly ebooks from Amazon or elsewhere. Those consumers are who this content is intended for.

So called copyleft options make content more accessible consumers. Think about it.