Munich (GER), December 2015 - "Platform-Based Learning: Risks and Possibilities Regarding Interactive and User-Generated Content Platforms" is the title of an OEB session on Thursday, 03 December 2015 at 14:15-15:15. Kerstin Bäcker from the Lausen law firm in Munich, Germany, will help participants acquire a clearer picture of the opportunities and potential risks of the use of Internet content.
From a legal perspective, what are the main problems that arise in regard to user-generated content?
Kerstin Bäcker: User-generated-content (UGC) platforms often allow users anonymous access to their services. This anonymity leads to a certain feeling of "safety" as it is rather difficult to track down the specific uploaders of illegal content. Thus these platforms bear a relatively high risk of being misused for illegal activities such as copyright infringements, defamation, hate speech, etc. Providers of this type of platform have to have mechanisms in place to prevent or at least tackle infringing content.
What do people who upload content onto a platform have to be aware of?
Kerstin Bäcker: Uploaders are definitely liable for any illegal content they place on the platform. Hence, they should only upload content they have created themselves and for which they have not granted exclusive licenses to third parties such as publishers or record labels. Furthermore, content should only be provided that does not infringe any rights of third parties, such as pictures in which individuals are displayed who did not consent to the publication of their image or texts that contain false statements regarding the person under discussion.
And what about people who use the content?
Kerstin Bäcker: By simply watching or listening to user-generated content, you do not run any specific risk, even if the content is infringing. However, downloading infringing content or using software tools to store infringing content that is streamed may constitute an infringement of copyright.
If you use user-generated content, bear in mind that the Terms and Conditions of many UGC platforms prohibit any commercial usage of content hosted on them and ask users to get in touch directly with the respective uploader in order to obtain a license. As a result, you have to check thoroughly whether you are allowed to include user-generated content in what you make available without any further license agreement.
Even if you are allowed to use content because it is published under a free license, it is likely that you are obliged to name the author or bound by special clauses in the free license. An important example is the "share-alike" version of Creative Commons: anybody may redistribute content or derivative works based on it, but only on the condition that it is again licensed on identical or similar terms.
Who is responsible for use that conforms to the law?
Kerstin Bäcker: Whether a user-generated content platform like YouTube is directly responsible for the content it makes available has not yet been clarified by case law - that is, continental European law. Ultimately, the European Court of Justice would have to decide this question.
However, if a platform has been notified by a competent authority regarding specific content that is infringing rights, the platform may be obliged to take appropriate and sometimes extensive measures to delete it. Those responsible must also make sure that the same content cannot be made available again on the platform. They can achieve this through the installation of filter technologies, for example.
Where can a person get help or support in case of doubt?
Kerstin Bäcker: If you are uncertain about what the Terms and Conditions of a platform allow you to do, you might want to look for FAQs or contact the support staff. If you are uncertain under what circumstances you may use third-party content for non-commercial purposes - such as an educational program - it is often recommendable to contact the copyright owner. Most copyright owners who publish content on UGC platforms also put their content under free license or are willing to grant a free license in specific cases for a non-commercial project.
Apart from this, questions about what is allowed by fair-use laws or similar limitations of copyright for quotations or news coverage vary from country to country and can only be answered by experts in the field. There are, however, many useful sources of information that can be found online. If the information stems from official authorities or institutions, it will generally be reliable. Personal views or hearsay found on bulletin boards or blogs that are run by legal laymen should not be trusted as readily.