This document discusses several intellectual property issues relevant to digital content businesses. It covers copyrights in user-generated content and works by artists/contributors. It also addresses user terms, privacy policies, monitoring forums, and using content from third party sites. The document provides an overview of intellectual property rights and recommendations for agreements with artists and users.

1. Digital Content and Intellectual Property
A Law Firm Specialising in Intellectual Property and Information Technology
Amb:IT:ion Project 16 July 2009 Peter Mason

2. Digital Content and Intellectual Property
• Web 2.0
• Relationships rather than property
• Artists / Contributors
• “Users”
• Third parties
• All of the above?
• Apportioning Risks and Responsibilities

3. Digital Content and Intellectual Property
• Basic introduction to intellectual property rights
• Agreements with artists for making digital use of
their works
• User terms in digital content businesses
• Forums and monitoring
• Privacy / data protection
• Using user generated content from third party sites
• Web development

4. Intellectual Property Rights - The Toolbox
• Copyright
• Protects text (including software), dramatic, musical, artistic and
derivative works (e.g. film). Generally not 3-D physical products
• Arises automatically with no registration necessary and is international
• Owned by the author or employer if made in the course of employment
• Any copying of a substantial part is infringement, no matter how many
changes are made
• Assignment by writing only, but licences by writing, terms or implication

5. Intellectual Property Rights - The Toolbox
• Confidential Information
– What does it protect?
• Information of a confidential nature
• Imparted in circumstances of confidence
– Common law or Contract
– Why is it useful
• It is the only kind of protection available for “ideas” alone.
• It also protects business information like contact lists and
financial information.

6. Intellectual Property Rights - The Toolbox
• Trade Marks / Branding Rights
• Will users, visitors or just those that hear about it think that the services or
goods come from a common trade source? Will they think the services are
being “endorsed”?
• Prevents use of a similar mark on similar goods such as to cause a
“Likelihood of Confusion”
• Are the potential customers the same? Is it sold through similar
channels?
• How will my customers locate the services? Is brand recognition
important?
• You can’t protect descriptive or generic names

7. Artist / Contributors Agreement
• Permitted (licensed) use
– Copying
– Publicly displaying
– Making available for on-demand use / download?
– Adapting?
– Licensing for commercial use?
– Licensing on Creative Commons type licence only?
• Payment
– In kind (pooling)
– Royalty on downloads
– Advertising percentage
– Commission on licensing

8. Artist / Contributors Agreement
• Release / Promotional Commitment?
– Minimum marketing spend
– Minimum amount of content made available
– Position in lists / rankings
• Term and Territory
– Termination linked to minimum targets?
– Targets by territory?

9. Artist / Contributors Agreement
• Warranties
– As the website operator / distributor you could be liable, therefore...
– Warranties from the artist that the work is there own etc
• Conflicting Contracts / Competitors
– Has the artist licensed their work to anyone else? Is this acceptable
in the future?
– Again, warranties from the artist

10. Artist / Contributors Agreement
• Special Considerations for Music and Film
– Literary, dramatic and musical works
– Rights in recordings
– Performer’s rights
– Membership of societies

11. User Terms
• Identification and Registration
• User generated content
– Licence to the website operator to use and edit the content
– Warranty that the content does not infringe other’s rights, breach
confidentiality or is obscene etc
• Limitation of liability for other user’s actions /
internet downtime etc
• Incorporation of Artist type terms?
• Disclaimers on areas of the site accessible without
sign-up

12. User Terms
• Licence of Content to the User
– Limited to Personal Use etc?
– Adaptation?
– Payment (royalties (for commercial use), subscription, paid-for)
– Creative Commons Licence
– Attribution
– Commercial use?
– Derivatives?
– Share alike?
– Can be adapted for your own use, although then don’t call it
Creative Commons Licence and don’t use their logo
– Choose the right territory and version.

13. Forums and Monitoring
• The Risks
– Liability for defamation
– Infringement of copyright
– Breach of confidentiality
• The Defence
– A mere portal
– Operator not in pre-publication control
– Act swiftly when notified to take items down
• The Problem
– You can’t know or properly investigate if an item is illegal
– If you’ve been notified, and don’t act you will be liable
– Chilling effect

14. Forums and Monitoring
• Practical Steps
– Adaptable forum rules
– Monitoring policy for moderators
– Quick take down procedure
– Standard letters and procedure to try to facilitate agreement and
show commitment to trying to protect and enable free speech

15. Privacy and Data Protection
• “Personal Data”
• Register at the Information Commissioner
• Privacy policy
• Agreements with third party processors

16. Privacy and Data Protection
• The Eight “Data Protection Principles”
– Process fairly and lawfully
– Data obtained for specified and lawful purposes and processed for
these purposes only
– Data to be adequate, relevant and not excessive
– Data to be accurate and, where relevant, up to date
– Data not kept longer than necessary for the specified purpose
– Data processed in accordance with data subjects rights
– Appropriate technical and organisational measures to keep data
secure and safe
– Data not to be transferred outside the EEA unless the country offers
adequate protections

17. Using user generated content from third
party sites
• Licence
– from the copyright owner (e.g. photographer, director,
artist)
– consider all relevant rights including rights in recording
and musical or literary composition
• Release
– from subjects or performers
• Consider conflicting contracts
– consider terms of the website the content appears on.
Do they have exclusivity?

18. Web Development
• Is your website business critical?
– Front end / back end
– Source Code
– ESCROW

19. Intellectual Property at Work
• Key Times to think about IP for digital
businesses
– Business Start Up
• Contributor’s Agreements / User Terms / Privacy
Policy
• Freelancers
• Trade Mark Registration
– New Website, Brand Design
• Development Agreement
• IP assignment

20. Briffa
Peter Mason Briffa
Business Design Centre
Solicitor 52 Upper Street
Islington
0207 288 6003
London
peter@briffa.com N1 0QH