Tag Archive for 'creative commons'

The solution to bad terms of service? Creative Commons and clarity

One of the big barriers in the way of commercial content creators (be they businesses or individuals) adopting web-based applications and services is the onerous terms and conditions these often present. Blanket ‘rights grab’ clauses are common, with even big names like Facebook and Google falling foul of the practice.

Talk to such companies and they brush off such terms as necessary legalese. You need to waive all your legal and moral rights to everything you post on/upload to/share with/create using their service, they say, because they need the right to handle your work and to copy and display it on the site without putting themselves at risk of breaching any laws. *Of course* they don’t intend to issue that song you posted as a chargeable digital download or use it as the soundtrack to an advertisement for their site without paying you. *Naturally* they’re not going to start flogging T-shirts based on that design you uploaded. And it would be *nonsense* to suggest they’d claim ownership over something you used their service to collaborate on with others.

It’s certainly true that if they did, they would likely face a wave of bad publicity and would probably also be on pretty dodgy legal ground, particularly if they’d given public assurances that their terms should not be interpreted in a particular way. But many have not made such assurances, and in some cases the threat of bad publicity might be outweighed by commercial advantages. If a business is on the brink of collapse, for example, there is a clear incentive for them (or for any organisation acquiring them, which may have entirely different values to those of the original founders) to attempt to claw back whatever revenue they can within the law.

That’s why anyone posting valuable content is going to be increasingly vigilant about exactly what they’re signing up to, as evidenced by this interesting and much-shared post from the Advancing Usability blog earlier this month, which compares the terms and conditions of video hosting sites in Canada. The lesson for service providers here is that if you want your social web application or service to attract professional content creators in future, you need to be clear that you’re not going to hijack their work. The problem is that legalese and plainspeak are mutually exclusive. In most cases, companies do not want to hijack users’ work, they simply want to cover their backs. But legal teams, used to the click-through-without-reading culture, seem to have got into the habit of being cautious to the point of complacency.

So how can service providers strike the right balance? The best example I’ve seen to date is from Aviary.com, an innovative start-up service offering a suite of web-based creative design apps. Aviary makes use of non-commercial Creative Commons licensing to ensure it has the permissions necessary to store and display creations users have posted publicly on the site without claiming commercial copyright over the works. Users also have the option to keep their work private if they choose, in which case the CC licence won’t be applied. When I spoke to Aviary co-founder Michael Galpert a few weeks ago, he told me: “We’re applying the CC licence to publicly-displayed works because we don’t want to be confrtonted with any legal problems. But in order for an artist to have full control over their work they will  sometimes want to retain full copyright, so we also give them that option.”

More importantly Aviary’s terms and conditions, while appearing in the usual legalese, are accompanied by a layperson-friendly sidebar clarifying exactly what those terms mean in practice. Galpert said: “Usually people assume because a lawyer’s approved something they can just slap it on their site. But the user or customer doesn’t necessarily understand the legal-speak. So even though a company might have their users’ rights in mind, it doesn’t come across that way when all that appears is a bunch of impenetrable jargon. Avi [Muchnick, co-founder and CEO] was intent on making our terms clear to everyone. Fortunately, he went to law school so he understands the legalese. When the document came back from the lawyers he slogged through the whole thing himself, translating it into everyday language to make sure it was legible for anyone coming to the site.”

The sidebar summary includes such unambiguous statements as:

  • “You own your content.”
  • “Some content may be licensed under Creative Commons.”
  • “If you allow another user to make a derivative, you still own your work.”
  • “You can download anything on the site for personal, non-commercial use only. Other uses are not OK (unless you purchased the work from the creator).”

My guess is that when presented with a choice of comparable services, users will increasingly opt for those displaying fair, clear and unambiguous terms like Aviary’s. Which gives me  heart  the trend will catch on. Who knows, perhaps the new game for lawyers might be to move away from their traditional plays of occlusion, obfuscation and obscurity. Now that really would be progress.

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Open IP, social responsibility and the new game

A couple of weeks ago, I wrote a blog post over at Steria Exchange outlining why the threat of litigation over digital copyright infringements highlighted the need for a ‘commercial commons’ – a pool of information, software, media and other resources that could be shared freely among individuals and organisations. This could benefit everyone enormously – making open web collaboration easier and helping businesses  to innovate products and services far more rapidly and cheaply than in the past. Some of the mechanisms to enable this are already well established, including initiatives such as open source and Creative Commons. But while these point the way forward, they will need to be built upon and championed more widely.

Opening up intellectual property also has clear social benefits. The front page of Saturday’s Guardian reported that Andrew Witty, the new boss of drugs giant GlaxoSmithKline (GSK), plans to put all its proprietary chemicals and processes that could help find new drugs for neglected diseases into an open ‘patent pool’, so they can be freely shared by researchers everywhere. In an unprecedented multi-pronged initiative, the company is also slashing the prices of drugs for the developing world, reinvesting 20% of profits it makes in the poorest countries in hospitals, clinics and staff for those countries, and spearheading a collaborative hunt for treatments to tropical diseases.

This bears out what I wrote in my opening post on this blog about the need for enlightened businesses to put social and community responsibilities ahead of short-term profit. Witty clearly understands this and is to be highly commended for making a radical move that marks out GSK as a pioneering corporate player of the new game. As he told the Guardian: “I think the shareholders understand this and it’s my job to make sure I can explain it. I think we can. I think it’s absolutely the kind of thing large global companies need to be demonstrating, that they’ve got a more balanced view of the world than short-term returns.”

Commenting on GSK’s move in Monday’s Telegraph, George Poynter echoed this message, arguing the credit crunch could herald a new moral economy. “In a new environment in which earnings growth is less available to avaricious shareholders, competition begins to have looser parameters and the demand on directors is not so much to prosper as to survive. GSK may well be recognising that its own survival, and that of its competitors, is dependent on the survival of its markets. To serve its markets is, in the long run, to serve its shareholders. This is an important development, because it implies that the market economy has to adjust structurally before corporate morality can follow,” Poynter wrote.

I share Poynter’s view, but the reasons for GSK’s move go beyond both altruism and the long-term survival of its markets. This will also boost the company’s reputation among the public and governments, as well as putting pressure on its competitors to follow suit (which Witty has called for). More profoundly, it illustrates how social responsibility is central to the hunt for talent. As a global player in the pharmaceutical industry, GSK needs to attract the best scientists and researchers in order to stay ahead of the competition. Most of these people would relish the chance to work on projects, or for a company, that helped to solve pressing real-world problems, rather than just developing lucrative products to line shareholders’ pockets. At a stroke, Witty has made GSK the most attractive pharma company for the most ambitious and talented researchers in the world.

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