Web 2.0, UGC, Mash Ups :: Laurence Kaye

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WEB 2.0, UGC, MASH UPS:Who owns the data, who is responsible?

Text of presentation given at the European Association of Directory and Database Publishers’ Conference in Barcelona on 29 May 2009.

Introduction

On the face of it, these are purely legal issues. Of course, they are legal issues but they also raise fundamentalquestions about how business models can be built and sustained in the digital world.

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Can any kind of content be taken using web technologies such as search, web scraping and harvesting freelyand without permission? Just because file sharing, search engines and other technologies make it possible to ‘grab’ content, does it mean that it is automatically permissible?

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Does the notion of “ownership” mean anything if content owners give their content away free and users arenot willing to pay for content and is the answer any different if content is advertising supported?

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Who are “publishers” and who are “intermediaries” in the online world? This is an important distinction. It’sthe publishers who can claim ownership of directory and other data and who may have to take liability forany illegal content they publish whereas “intermediaries” may be able to claim immunity from claims fordamages for any illegal content they carry or make available.

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Do the roles played by search and UGC in the online world, and the shift in power to the User, fundamentallychange the legal rules of the game? The driving force behind all the changes we’ve been discussing is theuser. Never before has the citizen/consumer been so empowered by technology. He or she can search, ‘tweet’, get data delivered via news feeds and a multitude of other ways and can publish to PC, i-pod, mobilephone and other devices. And when we discuss “User Generated Content”, we need to draw a cleardistinction between “User Created Content” and third party copyrighted content which is distributed illegallyby a user via ‘Peer to Peer’ or pirate websites.I think this is a significant moment in time to be discussing these issues. There is growing demand to considerthe dominance of Google and to understand the role which new intermediaries play in the digital world. Thenewspaper industry is again raising the prospect of paid-for content. At the same time, the rise of social mediameans that the boundaries between publishers, intermediaries and users have become blurred and the law hasbecome confused.In today’s business climate shareholders want performance, performance, performance. That may encouragesome to disregard the boundary between the legal and illegal use of content or, at the very least, not to want tofind out where that boundary lies.But I think there is a fundamental principle here which goes to the heart of online businesses like directories anddatabases which are driven by content. And it’s this: every player in the content chain who creates or adds valueto content should have the right to benefit from their contribution. The challenge is to translate that principleinto revenue.But that’s enough high level strategising for the moment. We all of us here have to deal with the world as it is,and not as it should be or may become. So in the remaining part of my presentation, I want to look at all of these issues in relation to an imaginary online “B2C” directory site – ‘let’s call it “Barcelonaconference.com” –

Page 229 May 2009which has the following features:-

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“User generated Content” in the form of forum posts, videos and ratings of restaurants and other localservices.

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Directory content held in its own databases, consisting of data licensed in from data suppliers andaggregated data obtained by desk-based research and by using technical means such as web scraping.

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It has a search function which enables the user to search against the names of people and local businessesand the results are displayed ‘on the fly’ from web sources including social network sites. You’re Vice President, Business Development, of ‘Barcelonaconference.com’. Your day has not started well: adeal you were working on has just fallen through and your promising assistant has just given notice that she’sleaving to join a competitor. Your PA then comes into your office with a letter that’s just been delivered. It’s from a firm of lawyers. As soonas you get it you get your lawyer to come to your office and you read it to him:

“Dear Sirs “We act for

Excellent Publishers Limited and for its CEO, Snr. Juan Excellente. Your site has the following features:

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Your site and its RSS feeds contain a substantial amount of data about local business services which have been copied, by technical means or otherwise, from our client’s website. This infringes our client’s database right.

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Your site displays quotations from the news service on our client’s site and these are available as RSS feeds.

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There is a mash up application on your client’s site which includes data which must have been obtained from our client site.

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Our client also found a defamatory post about him in one of your user forums and when he used the search feature on your site to search against his name, the results displayed included a link to a site which contained defamatory material about Snr. Excellente.Unless you shut down your website within 48 hours, our clients have instructed us to take legal proceedings against you.”

“Surely this is all ridiculous?”

You

tell your lawyer.

“All we do is to provide the technical tools and facilities to enable our customers to get what we want and to give them the possibility to contribute to the site by providing UGC. I thought all of that was covered by legal exemptions because we are just acting as an intermediary between other sites and our customer. So can I just tear up the letter?”

Your lawyer is silent for a few minutes.

“Is there a problem here?

you ask.

Page 329 May 2009

“Well, it’s not that simple”

, says your lawyer.Well, no-one promised simplicity! So let me give you some views. But let me begin with a couple of ‘big caveats’.These are complex issues and Court decisions in Europe, US and elsewhere are often thin on the ground andcontradictory. So please don’t take my views as formal legal advice. In other words, “please don’t sue me!” Also,I am going to base my remarks only on European law.But before we can do the analysis, I need to provide a very brief background on two key legal issues whichdirectly relate to Barcelonaconference.com. The first one is about intellectual property in websites and otheronline data repositories. The second is about the exemptions from legal liability for illegal content which the lawgives to intermediaries.The first point is that a website is full of intellectual property. It is “IPR rich”. Of course, that intellectual propertydoes not guarantee revenue but it’s important to recognise that it exists.Each page may be a copyright work and the collection of HTML pages is treated as a copyright as a “database”.In addition, databases sitting behind the website (e.g. directory data) are potentially protected too. In addition,the site may contain separate copyright works such as videos and sound recordings software applications on andeven applications hosted on the site which are run via users’ browsers.So in Europe, there are at least 3 levels of intellectual property protection which can apply if the tests forprotection are met:1.

Copyright in the collection of HTML pages or equivalent.2.

Copyright in the various databases (e.g. holding directory data) and other copyright works (e.g. videos).3.

Database right (also known as the ‘sui generis’ right) in the investment made by the directory publisher asdatabase producer in each of the databasesThese can be represented in the following form:

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