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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I think that a clear, human-readable terms of use document is a *great* idea. However, would such a document, understandable by the masses, end up discouraging submissions?
Most people I know skip terms of use documents entirely, or at best skim the first couple paragraphs before their eyes glaze over.
How many people, once they understood what they were giving up when submitting content, would still do it?
I agree very very strongly with you on this one. I’m also a huge advocate of tell it like it IS. tell me what all that legalese MEANS and don’t make me get a law degree to figure it out on my own. Hiding behind walls and walls of legalese and lawyers just makes any outlet (is outlet as bad as platform?) look cowardly in our new world of honesty, transparency and consistency.
That said, I will likely still submit content and were I given the opportunity to contribute on air on a regular basis, I’d be all over it. I’m going to ignore the fact that my stance may make me hypocritical and leave it at that.
Could someone at the CBC please come to the aid of this posting’s writer and offer up a more appropriate way to describe being irritated than saying “I have a major stick up my butt about this”.
Such awful imagery is surely beneath civil discourse.
As for the “fix”, or proposal to dumb down the real thing, hasn’t the CBC done enough of that already with their programming?
Those TOS are not cool.
Go ahead. Use my comments on air and sell them to the Toronto Star. Then twist them around to make it look like I’m saying that I’m a liar who cannot be trusted and, just for the heck of it, I also have an old-fashioned “loathsome disease”.
Hey! I just said it, so you don’t even HAVE to twist my words! Just put quotes around them. Man, I guess getting people to waive their moral rights will be easier than you thought.
While I am in agreement that the TOS many corporations adopt are very restrictive and hard to read, there is good reasoning on their part for doing such.
We life in an overly litigious society, and unless every concievable use of the submitted media is covered they run the risk of someone deciding to unleash the lawyers. Some people read through Terms of Service just trying to find a way they can force a situation where they can attack or sue an organization. Common language isn’t specific enough to avoid lawsuits.
The TOS doesn’t necessarily reflect what the corporation intends to do with content, but does try to reflect everything plausible.
Blame the fact that we live in a world controlled by lawyers instead of common sense.
A few points Tod
1. that known universe phrase is actually a pretty common phrase in contracts these days.
It originated in Hollywood…..heck it might have come out of Paramount — the producer of Star Trek.
2. This sort of thing is fine for the one off submitter. The person who sends in a picture of the New Brunswick flood.
3. The long term problem is that this is another way of the suits (not just at CBC, but everywhere) to get more and more content for free while sitting on their bums in their corner offices and making the big bucks. With so many people with digital cameras, video cameras and cell phone cameras good old market forces mean there are seldom exclusive pictures and the market value of pix is going down hill (paparazzi are complaining about the competition from cheap amateurs). But that gives the good submitter less of an ability to negotiate for money for their work. That depresses the marketplace, and if it is no longer worth it in time and money to produce good work, which is happening, then people will add up the costs and benefits and say it ain’t worth the time and trouble and walk away. That means every media outlet will be flooded with junk and finding the gems in all that (to mix metaphors) will be harder than finding a needle in a haystack.
There ain’t no such thing as a free lunch (TANSTAAFL- Robert A Heinlein)
4. I am rather cynical in my old age. It’s not about inviting the public into the media discussion (at least thw way most media are handling it these days). It’s about increasing the ratings by force of numbers, so the suits can justify their high salaries. But in the long term the advertisers in this age want targeted audiences and they are going to wise up and look for the outlet that still has that gem.
JFW
so, is this the same waiver that radio 3 makes bands sign when they upload their art and music, so that they can podcast it and send it around the world without ever compensating the artist?
all under the auspices of mutual promotion?
cause bands aren’t the only rights holders. record labels and publishers are too and they don’t check in on those waivers from what i understand…….
[...] on the great Inside The CBC blog Tod Maffin raised many of the same issues about the terms of use for the CBC’s website. It seems as though large media organizations [...]
Facebook has much scarier stuff in their Terms of Use, IMHO. But you don’t see posts on TechCrunch about that, do you
Terms of Use are simply legal catch-alls to protect the company from being sued. They don’t represent standard practices.
That said, there absolutely should be a more human-friendly version outlining the key parts, just so people can make a more educated choice about whether they want to submit content or not. Everyone knows 99% of people do not read the Terms of Use.
Tod, thanks for this excellent column. It sums up a lot of the thoughts we have discussed at the Canadian Media Guild, particularly in the Freelance Branch of the Guild. I know that this idea of ‘citizen journalism’ has been building in popularity for years, but it’s also a way for an employer to save money, using this citizen journalism in place of sending employees or freelancers out to gather news, all given to the employer free of charge and with no fetters on re-use or re-sale.
For all the commenters on this blog who complain about the quality of the CBC going downhill, just wait until when the Corp starts relying more and more on ‘free’ material to fill webpages, mobile phones, airwaves and TV screens, instead of on professionals trained on how to gather news with a careful, journalistic eye.
Well in general I think it is good to point out the specifics of the “Terms of Use”. Anyone considering posting to the CBC website (i.e. providing comments) should read and understand these Terms before the submit a comment.
However there is a distinction between “submissions” of various kinds. Submission of individual, personal comments differs from submission of journalistic work. Your posting goes on to discuss various situations and scenarios involving contractors, and journalistic content to be (re)used by the CBC as part of its own service (collection, analysis and distribution of information).
I suggest that if the “Terms of Service” lump together these two cases, the CBC should fine tune them. Readers of the CBC public “blog” do not expect their comments to be re-used and exploited in the same manner as freelancers or other professionals. And while the CBC should *protect itself* by imposing certain conditions on personal comments, it is overkill for the CBC to demand the right to exploit these “submissions” in every conceivable way.
That’s why I send my insipid thoughts to the CBC and save the good stuff to be released under a creative commons licence.
Hi
These are great comments and we are looking at a fair way to allow people to agree when their comments can be attributable. I think most of these issues apply when someone is writing under their own real name and that can be verified.
A commenter that wishes to remain Anonymous, has a different kind of protection by virtue of that fact.
Personally I’d like people to have the option to remain anonymous with a greater range of usages available for the CBC AND to have the option to agree to an attributed comment with their real and verifiable name at the time they post so that they have more control over how that comment will be used and attributed.
Still complex issue and I appreciate the thoughts here.
I don’t think either version is acceptable. The CBC is transitioning so that their reporters are now required to do a video, audio and written report. They’ll also be relying more on “user-submitted” content. Ie, people working for free. Why is that every media corporation out there will sue for a flash of the Simpsons in the background of a documentary but you’re free to take whatever *I* produce and make money off it?
Just one more example of the person, as corporation, doing better off in this country than the person, as human.
CTV was just promoting their newly created MyNews site that encourages viewers to upload video and still shots of breaking news. They didn’t get around to mentioning the terms of use in the promotional news clip (if that isn’t a contradiction in terms). I looked it up and it’s similar to CBC’s, although they missed out on the “universe” provision.
Mike K, you seem to come within a hair of advocating *tricking* people into giving up rights just so we can have more active forums. Fewer posters is not necessarily a bad thing, and fewer posters who wouldn’t have posted if they knew what they were agreeing to is a good thing!