Every so often, the Internet community (at least the Twitterati circles in which I travel) get hooked on a topic for a day and send around thoughts back and forth. Most of us are just talking out of our, er, sockets, but at least it’s a step up from the previous Internet chat room discussions (”You suck!” “No, YOU suck!”)
Today, it seems to be a discussion around big media companies still using old rules to play in new media. TechCrunch, an influential technology news blog, has an article up today called Old Media Still Needs to Get Over Its Control Issues. While the article focuses mostly on giving people a place to comment (which CBCnews.ca does far better than any of its competitors), it reminded me that the legalese “Terms of Use” text on the CBC web site hasn’t really caught up.
What It Says
If you send anything into the CBC — whether it’s a comment, a video submission, a photo of a breaking news event — you have to agree to give up some things.
From the CBC’s Terms of Use on its web site (emphasis and paragraph breaks added):
By posting or uploading Submissions to the Web site, you grant CBC/Radio Canada a royalty-free, perpetual, non-exclusive, irrevocable, unrestricted, worldwide license to use, reproduce, store, adapt, translate, modify, make derivative works from, transmit, distribute, publicly perform or display such Submissions for any purpose; and
to sublicense to third parties the unrestricted right to exercise any of the foregoing rights.
In addition to the grant of the above license, you hereby (i) agree to waive all moral rights in any Submission in favour of CBC/Radio Canada….
The image on the right highlights where this text exists in the Terms of Use. It’s just a part of a big document. Let’s look at what this portion means in detail:
What It Means
Right To Use:
The first part, admittedly, is pretty standard. When you submit content, nearly all media companies want the right to put it on any of their platforms (ugh, I said “platforms”) as that they please.
It could be worse. CanWest Global’s 2004 contract with freelancers said this:
CanWest shall have the right to exclusively use and exploit the Content in any manner and in any and all media, whether now known or hereafter devised, throughout the universe, in perpetuity….
Really. “Throughout the Universe.” That’s what it said. [Enter William Shatner, stage left.]
In an ideal world, media organizations would have a large database that tracked public submissions and their use on-air/online. This would let media groups be more fair in their use of the content — they could, at the least, send a courtesy email to the contributor telling them where/when their content will air. (In fact, this database exists for freelance producers, musicians, actors, and other folks who contribute material and are paid for each airing.)
However, the amount of time, labour, and database costs it would take to track each submission would be off the scale and this small benefit probably isn’t worth the cost to taxpayers to provide it.
Sublicencing:
I have a major stick up my butt about this one. If I send a photo or short video of a breaking news event to the CBC web site for the CBC to use freely on air and/or online, that’s one thing. But I certainly would feel cheated if the CBC turns around and resells the content to, say, CNN! (The Terms don’t specifically say any money would change hands, but there’s nothing that says it can’t.) Shouldn’t I get at least a cut, if not a say in the matter?
Moral rights:
Moral rights does not mean that you are giving up your copyright. It’s a legal term that’s not explained in the document. Essentially, by waiving those rights, you can no longer “object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to [your] honor or reputation.” [Berne Convention for the Protection of Literary and Artistic Work]
WTF?!
To be clear, if you waive those rights — which you do as soon as you submit anything to the CBC — the CBC can do what it wants with it, regardless of how it might affect your reputation.
Some might argue, in fact, that the CBC is in violation of section 14.1(2) of Canada’s Copyright Act by asking you to waive your rights “in favour of CBC.” In the Act, it says that “moral rights may not be assigned but may be waived in whole or in part.” I’m not a lawyer, but to me waiving my rights is waiving them. Kissing them goodbye. But if I waive my rights “in favour of the CBC,” it sure sounds like I’m specifically assigning those rights to the Mothercorp, which would be a clear violation of the Act.
I’ve asked the CBC law department for its interpretation of how “moral rights” are used in practice.
How We Should Fix It
I’d like to give the CBC the benefit of the doubt here and assume that the text simply hasn’t caught up with the realities of new media, citizen journalism, or online audience submission. But my gut tells me this document reads exactly how CBC wants it to read.
And to be fair, the lawyers are not at fault. I know several of the CBC’s lawyers and they’re helpful, ethical, and smart people. But let’s face it; their job is to protect as much of the CBC as it can and that includes getting as much in contracts as possible.
So why can’t we at least have a simple human-readable terms of use? Hell, even the behemoth Microsoft has one. Posting a human-version doesn’t mean we can’t have the legal-version as a prominent link, such as “This is only a simplified version of our Terms of Use. For full details about your rights, read our Compete Terms of Use here.”
We can still make it make sense, even if we stick to our guns on the rights we want. Here’s how I’d write the above:
By posting or sending content to the CBC, you let us use it for free on any of our networks, stations, or online properties.
You also agree to let us make changes to your content and re-use at our discretion, even if you object to how it’s been changed.
Also, you agree that we can sell, licence, or give away your submission to any third party such as another broadcaster or publication.
You won’t be paid for this content or any third-party use, but you will continue to own the copyright, so you can use it elsewhere if you want.
Would it be that hard to be up front and clear about the rights we’re asking for when people send us content?
As Dennis Miller would say: “That’s just my opinion. I could be wrong.”
What do you think?
You may have noticed a few changes to CBCnews.ca…
