As is the case with many social networking or image sharing sites, the operators of the site/app/service (we will call them “Operators” for now) understandably do not want to take the responsibility for material posted by the users. Like anyone, the Operators want to minimize their risk – this is not to say that all sites are reasonable in how they approach the issue of user posted content, and that is what deserves some commentary.
Because various legislation, particularly in Canada does not do a very good job of addressing the current reality of intellectual property uses (permitted and restricted). It would not necessarily be off base to say that in the present social network driven society posting an image is akin to telling a friend about an event or showing them a picture during a conversation. The law does not take this view yet, and because of this, Operators need to protect themselves to perhaps a higher degree than what would be practically expected. But again, care has to be taken to understand the extent and implications of these protective measures.
So what is the average Operator concerned with? Operators don’t necessarily have control over what is being posted and because the actual act of posting constitutes a copyright infringement (reproducing the content), the owner of the original content could come after the Operator claiming a breach of the content owner’s rights. So the Operator wants to protect itself from this. Where does an operator find this protection? One solution could be insurance, but, often insurance will not cover user posted materials, or make it too expensive to be a practical solution. Another mode of protection would be constant monitoring, which is not only time consuming, but also can be insufficient as while you can fairly readily identify a clip from the latest blockbuster film, distinguishing between a photograph taken by a user and one taken by an recreational or professional photographer is not always possible. For this reason, Operators ask users to agree to only post materials they have the right to post, and if they do something contravening their agreement, they take responsibility for it.
Until legislation in various countries address the new reality of sharing, users do in fact have to pay attention to what they are agreeing to… well… maybe as long as it’s reasonable… maybe? The next post will deal with this question.
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