Thoughts on Corporate Usage of User Generated Content

Sumant Srivathsan and I have a running conversation over corporations soliciting advertising and content generation by customers without compensation and we’ve written up our thoughts on this and the current TATA Docomo campaign.

[Gautam] I firmly subscribe to what Cory Doctrow has said, that an artist’s greatest worry should be obscurity and not piracy or, in this case, a lack of suitable monetary compensation. While on the subject of monetary compensation, I also believe that attention is a valuable commodity in its own right that can be monetised and is a very important element in any modern day business model.

[Sumant] I don’t have a problem with crowdsourcing content in general, and I concur that attention helps to increase the value of future work. However, what it creates is a never-ending spiral that consistently under-rewards creative work, but tacking on the “future reward” rider. I have a problem with this, because it allows the buyer to artificially create a position of strength and dictate the value of products that are not part of the current transaction.

Our current discussion is over TATA Docomo’s Celebration campaign where they encourage people to submit creative entries for Diwali as animations, wall papers and screen savers.

The relevant terms are below:

Rules for CREATE CELEBRATIONS:

12. The winning entry(s) will become a copyright of TTSL and TTSL will have all rights to use the winning entry (s) in whichever forums, media and frequency it deems appropriate, without any financial or any other obligation whatsoever.

http://twitpic.com/2wqggm

Terms & Conditions of the CREATE CELEBRATIONS:

2. Participant acknowledges that all the copyrights rights and intellectual property rights of an entry(s), post its submission would entirely and solely vest with Tata Teleservices Limited (“TTSL”) only. By submitting the entry(s) for the Contest, the participant agrees to assign and transfer all copyrights of the submitted entry to TTSL without any consideration and compensation.

http://twitpic.com/2wqgli

In short, all entries and the copyrights in and to them belong to TATA Docomo and they will pay the winners in each category. However, the Rules for the CREATE CELEBRATIONS seem to suggest that only the winning entries become the copyright of Tata Docomo but the Terms & Conditions seem to suggest that all submissions and entries become the copyright of Tata Docomo.

[Gautam] I am not a fan of TATA Docomo asking for an effective assignment of copyright to them and a model I would recommend is that they use a more permissive license, such as a Creative Commons license, to allow the artists to keep copyright and be able to share it on their own terms.

[Sumant] TATA DoCoMo should not be in a position to dictate what an artist does with future work, which may not exist, because that should be entirely the artist’s prerogative. I suppose any artist who feels that way would demand a higher price for the work, and therefore not enter into a contract based on TATA DoCoMo’s terms. Insofar as their terms and conditions are clearly stated, I have no problem with TATA DoCoMo’s offer to contributors.

I suppose TATA DoCoMo is in a unique situation because they are allowing use of their trademarks for use in the UGC. I still think that the ideal outcome ought to be a sharing of rights, and not outright transfer to TATA DoCoMo. I’m not happy with the prizes being offered, which is a fraction of the cost of the video being done by an agency, as this devalues the contributor’s work, and I’m not happy with the attribution. It says “this is an idea of so-and-so” whereas the contribution is completed animation/artwork. That is misrepresentation.

[Gautam] However, at the end of the day, it’s a free world and a free market and if TATA Docomo has many takers, as I am sure they will, they do so knowing full well of the terms of contract. Caveat Emptor and all.

[Sumant] I do like the deviantART and Threadless/Inkfruit models of crowdsourcing much more. In both cases, attention is a given. In addition, there is a clearly stipulated revenue-sharing system in both of these models that allows artists not only to monetize the attention they gain, but also the work itself, to its maximum. Also, in both cases, the artist retains all rights to the content they have created, but are shared under a licensing agreement. dA uses a CC license, but I’m not sure about Threadless or Inkfruit.

UPDATE I:

TATA Docomo have now changed their Rules to state

12. Participant acknowledges that all the copyrights rights and intellectual property rights of an entry(s), post its submission would entirely and solely vest with Tata Teleservices Limited (“TTSL”) only. By submitting the entry(s) for the Contest, the participant agrees to assign and transfer all copyrights of the submitted entry to TTSL without any consideration and compensation.

It’s clear now that all submissions and not just winning entries have their Copyright assigned to TATA Docomo.

UPDATE II:

Nandita Saikia has written a post well worth reading on the legal elements of contract and copyright involved in such cases and why such clauses might not hold up under legal scrutiny.

What are the legalities involved in not only announcing that one owns the property of another person but in doing so while being factually accurate? In fact, going a step further, would it be legally possible to effectively decide that one owns the property of another person without paying that person anything?

One context in which such questions could arise is in the context of User Generated Content (UGC) which is submitted to websites. Such sites which solicit/accept submissions from users often have, somewhere in the fineprint of their Terms, clauses which state that ‘(1) all submissions shall be the exclusive property of the website, (2) the submitting-artist/user (hereinafter referred to as the “artist”) shall have no right to his/her submission/”work” or therein or to any profits which may be derived therefrom, and (3) the website may deal with the work in any manner it chooses without any reference to the artist, and without making any payment to the artist’. Some websites may acknowledge that the work once belonged to the artist and draft clauses in the form of an “assignment” of copyr
ight or “transfer” of the work.

Read her full piece over on the Indian Copyright blog.

 

 

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About gkjohn

Recovering lawyer, erstwhile entrepreneur, pretend polymath, hopeful zookeeper and future dilettante and farmer of organic strawberries. Work at @aksharadotorg and @klpdotorg. Previously at @prathambooks. Was a @tedfellow.
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2 Responses to Thoughts on Corporate Usage of User Generated Content

  1. skarra says:

    Is it even legal to assign copyright without consideration. Isn’t it generally accepted practice to show a nominal consideration of $1, or INR 1? I remember the FSF’s copyright assignment had a clause to that effect.In this instance, Tata Docomo is justified in controlling what happens to the output as there is a real risk of affecting their brand. The compensation for winning entries is an altogether different issue. Some might say having one’s name publicized on national television (during a India – Australia test match no less) is more than sufficient non-monetary compensation for an unknown creative artist?

  2. Anonymous says:

    Skarra: You are correct about the consideration though both ‘brotherly love’ and ‘a peppercorn’ have been held to be valid consideration, if I remember law school correctly. As for the second part, as we’ve written above, it would be *nice* if they let people keep copyright but that said, it’s for the participants to decide and I do think that attention is excellent compensation.

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