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?

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	CBC.ca web site, Legal	Posted at 2:13 pm (26 May 2008)

Did you know: If you’re working on a story and need a quick legal opinion about something in your script you’re concerned about, advice is just a phone call away?

Yesterday, when I was writing my technology column for CBC Radio One’s regional morning shows, I discovered I was a little in over my head with a legal question. I’m reporting this week on a company which has been attacked on blogs. I needed to know: Can I report that people are accusing the company of having “a kick-back scheme”? Or would that qualify as (re-)publishing a defamation, which would expose the CBC to liability?

With a couple of clicks, I found the Getting Legal Advice [internal link only] page on iO. Picked up the phone, read the part of my script in question to one of our senior lawyers, and got an answer (it’s fine to report that — covered under Fair Comment).

You can find the phone numbers of these people on that page. Be sure you’ve got this information at hand:

• names of sources, the number of sources, the positions held by sources and the extent of their personal knowledge of the event in question;

• all documentation, its substance and how it was obtained;

• location where any comments were made (in a court of law or a legislature, or in the street);

• circumstances in which reports on an event or individual were made.

Related links (all internal links only):

• Getting Legal Advice on Contracts and National Agreements
• Using Commercial Music
• Using Photos and Stills
• Using Footage
• Running a Contest

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	Legal	Posted at 2:03 am (27 Feb 2008)

On September 1, CBC/Radio-Canada will be subject to federal legislation that provides a right of access to all records held by the Corporation.

Lots of staffers have asked how this affects their day-to-day work and two PDF documents were distributed today with tips on how to operate within the legislation. In case your workstation has trouble with PDF files, here’s the information.

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The information we work with every day falls primarily into the following two categories of records: “business records” and “transitory records.”

Business Records
If you’re wondering whether a particular record is a business record, ask yourself the following questions:

• Does the record document the delivery of a program or service?
• Is this a record of why or how a decision or action was taken?
• Does the record involve financial and/or legal matters?
• Does the record have policy, program and/or procedure implications?
• Could this record have historical value?

If you answered, “yes” to any of the above questions, then you should consider your record a business one and maintain it according to the corporate records retention schedule.

Examples of business records:

• All final briefings, reports, studies, surveys, and similarly received or collected material.
• All letters and memoranda that meet the criteria described above, including electronic messages and /or documents for which no paper copies have been produced.
• All substantive versions of a document, when they clearly demonstrate the document’s evolution, the decision-making process, or the development of policy and legislation.
• Copies of documents that have already been sent to the official departmental file, if the documents contain substantive annotations.

Managing Your Records

1. Be informed: identify business records.

A record means “…any documentary material, regardless of medium or form.” The term is interpreted very broadly and includes paper files, electronic files, e-mail messages. It can also refer to notes, plans, maps, drawings, diagrams, pictorials or graphic work, photographs, film, microform, sound recordings, videotapes, machine-readable record, and any other documentary material.

For more information on the difference between business records and transitory records, see the Tip Sheet on Business and transitory records.

2. Be aware: identify transitory records, non-business and personal information.

Transitory records are usually made up of working copies of documents, handwritten notes, FYI emails, telephone messages, etc. Much of this information does not need to be retained after it has served its usefulness to you. If you decide to keep transitory information, including non-business and personal records saved on the Corporation’s servers, remember that it must be submitted to the ATIP Office if it is relevant to an access request.

3. Be proactive: create records with the expectation that they may be disclosed.

Stick to the facts; leave out unnecessary information. Record only the information that is needed to accomplish a task or meet a business requirement. Don’t assume that, just because an exemption or exclusion could apply, that one will be applied to your record.

Keep in mind that most email messages on CBC/Radio-Canada servers are corporate records; keep them brief and maintain a business tone. Email messages that contain actions or decisions should be retained with ATI in mind; they should be easily accessible if required.

4. Be objective: keep your records factual and objective.

Keep minutes and other formal records of proceedings factual. Record the decisions taken and tasks resulting from deliberations. Avoid unnecessary detail. State your views, comments and opinions as objectively as possible. Keep in mind that an individual can make a request to access their personal information, which can include the views or opinions of another person about the individual.

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	Legal, Parliament	Posted at 11:42 am (23 Aug 2007)

A Sikh organisation says it has filed a $110 million lawsuit against the CBC. It says the CBC has linked it to terrorism and damaged the reputation of the overall Sikh community. The World Sikh Organisation is also suing CBC TV reporter Terry Milewski. The issue revolves around a documentary aired two weeks ago called Samosa Politics.

WSO claims to represent Canada’s entire Sikh community of about 400,000 people. A spokesperson for the group said the CBC attempted to make a connection between the group and violence and extremism.

“I was totally awed, shocked and flabbergasted when I saw the documentary. Nor was the organisation ever contacted to comment for the documentary,” the WSO official said. “They should have had the courtesy of calling.”

But according to CBC spokesperson Jeff Keay, the Corporation hasn’t received notification of the lawsuit, but stands behind its story.

Update: CBC spokesperson Jeff Keay says: “I can confirm that we are in receipt of a Libel Notice and a Statement of Claim issued by the World Sikh Organization of Canada, which we are in the process of evaluating.  We will not be making any further comment at this time.”

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	Legal	Posted at 4:22 am (13 Jul 2007)