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Practical guidance for dealing with UGC in news reporting

Everyone's a potential journalist now. Given the popularity and quality of smartphones and other handheld devices, anyone can capture pictures and videos that can make the global evening news.

May 2015

Creators will often share their user generated content (UGC) via a number of social media websites, whether the content relates to small, everyday events or those of wider significance. Content depicting newsworthy events may come to the attention of a newsroom looking to find 'as-it-happened' photographs or footage of a particular moment in question. Newsrooms need to remember that, just because a video has been uploaded to a social media site, does not mean it is free to use.

Control

Copyright owners (usually the creator) have the right to control how their content is used and placing it on social media does not strip away those rights (see here our discussion of the impact of the terms of those sites).  There are, however, exceptions to this rule and it is crucial that newsgatherers are capable of assessing the level of clearance required before using UGC.

Verification

Verification should always be the first step when considering using a piece of UGC. There are two key elements:

  • verify who owns the content.  The uploader is not necessarily the creator.  To avoid discovering that permission has been obtained from the wrong person further down the line, it is best to make appropriate enquiries from the uploader from the outset, such as "did you take this photo and, if not, who did?" Asking "is this photo yours?" is insufficiently precise;  and
  • verify whether or not there are any third party rights embedded within the UGC – for example, is there any music incorporated or is someone's private life depicted? Will this require its own separate licence and, if so, from whom? For example, a recent decision from the UK press regulator, IPSO, which considered use of an image from Facebook in a story about someone who had been arrested for murder, demonstrates the need for IPSO signatories to take the IPSO Code into account when deciding whether to use UGC (see the decision). While, on the facts, the complaint for breach of privacy was unsuccessful, the complaint about identification of friends of people of accused of crime was upheld.

approved stampClearance

Once the content has been verified, a decision needs to be taken as to whether or not it is necessary or sensible to obtain clearance from the owner to use it.  Although clearing the content may seem a bit of a nuisance and may not be necessary if a fair dealing exception applies (see more below), it will provide peace of mind and avoid having to consider whether a copyright exception applies.

Depending on the motivations of the content owner, the following issues are likely to be relevant:

  • crediting the creator – will the creator want a credit and is giving one possible / desirable?  A powerful reason for requesting permission is that it would mean not having to rely on the "sufficient acknowledgment" (i.e. crediting) requirements of the fair dealing defences we discuss below;
  • payment – it may be that the creator will not want anything beyond a credit in return for granting permission to use their content but the general public is wising up to the value of this type of content, and creators may want to cash in on this earning potential.  Requests for payment are becoming more frequent and newsrooms should have a policy in place dealing with how much, if anything, they are willing to pay for different types of UGC; and
  • adequate permissions – UGC uploaders receive many requests to use their content. These are often short requests to use the content without a thorough discussion of what rights are being granted and for how long. Should the content owner give permission to use the content, this permission will most likely be in the form of a simple "yes" and, therefore, will not comply with usual contractual formalities. This kind of 'bare licence' is unlikely to be enforceable against content owners if they change their minds.  This means it may be preferable to have a real discussion with a content owner and, if practical, enter into a formal contract to secure appropriate, comprehensive and robust permissions.

Verifying and clearing UGC may be the prudent thing to do, but what if it's not practical?  The creator may not respond to the clearance request or it may be denied.  In those situations, a copyright exception may be available which would enable a newsroom to use the content without clearance from the owner.

Fair dealing

The use of a copyright work (other than a photograph) will not infringe copyright as long as it is fair dealing for the purpose of reporting current events and is accompanied by a sufficient acknowledgement (no acknowledgment is required in relation to sound recordings, films or broadcasts where this would be impossible for reasons of practicality or otherwise).

One of the key things to note is that this exception relates to current events. Generally, the older the news event, the less likely it is that this exception will apply.  It can, however, be argued that an event still has some currency even if it happened a while ago, for example, if footage from a terrorist attack was re-used to report on the perpetrators' trials or if historical material became relevant in light of a fresh event. This limitation demonstrates another of the benefits of seeking clearance: if properly worded, a clearance request could secure permission to use for a lot longer than the defence would allow.

When considering whether or not the use is "fair", a court will primarily consider:

  • whether the use competes commercially with the original work;
  • whether too much has been taken; and
  • whether the original work has been published.

The first point is difficult to apply in a UGC context because there is unlikely to be a market for the work which is harmed by the dealing, although markets are being created around this content with the growth of social media news aggregators and there may well be value in later uses of it.  The second means that use of the whole of a piece of UGC should not be the default position but should only occur when really necessary.  The third point should always be checked as part of the verification exercise: if the UGC has not been made public with the consent of the owner then it will be very difficult to rely on the exception.

If the reporting of current events defence is not available, the new quotation exception (effective from 1 October 2014) may be of assistance.  If a work has been made available to the public, a user can quote from it as long as the fairness test is complied with, no more than is required for the specific use is taken and there is sufficient acknowledgement (unless this would be impossible).  The quotation defence applies to photographs as well as to text and films so it is arguable that the taking of a whole photograph, depicting an event in the public interest, would fall within the defence.

Remedies

While we have not yet seen a UGC test case go through the English courts, a copyright owner can claim compensation by way of damages against someone who has infringed his/her rights. copyrightIf a newsgatherer uses content subject to copyright without permission and a defence is not applicable, then it could face a damages claim, especially as UGC creators will only become savvier about their legal rights.  Damages will start at what a reasonable licence fee would have been, and evidence of what is standard in the market will be looked at.  There are indications that English courts might not look too favourably on a news organisation that took a lax approach to copyright.  In a recent IPEC copyright infringement case, for example, the claimant, a photographer, was awarded damages with a 500% flagrancy uplift on a reasonable licence fee for a particularly egregious use of his content.

Given the number of issues to consider when using UGC, having a dedicated UGC team and a specific UGC strategy in place for clearing rights quickly and effectively is essential for newsrooms which want to take advantage of this type of content.

If you have any questions on this article please contact us.

cameraman
Adam Rendle

Catherine Ferrity

 


Adam and Catherine look at how to use UGC in news reporting without infringing copyright.

"Given the number of issues to consider when using UGC, having a dedicated UGC team and a specific UGC strategy in place for clearing rights quickly and effectively is essential for newsrooms which want to take advantage of this type of content."