Today collaborating, aggregating and adapting shared content is common online. However, many do not realise there is a lot of work behind the scenes to facilitate a content sharing platform. In Australia, copyright protection automatically attaches to works on their creation. Accordingly, in general, without first obtaining a licence from the copyright holder, people cannot reproduce copyright material without the author’s or owner’s permission. To combat copyright issues, “public licences” and “copyleft licences” have been created, or website owners have incorporated licence arrangements in their “terms of service”. Below, we explain the types of terms to include in your terms of service on a shared content website.
Terms of Service
Terms of service (the Terms) are the rules a user is bound by when using your website. It sets out obligations, rules, restrictions on and directions to users. There is no “one size fits all approach” to drafting Terms. But including terms on some issues can facilitate use and reduce problems down the track.
Notice and Commencement
It is essential you include sufficient notice of any terms (especially unusual or unique terms) to your users. If you do not provide adequate transparency of standard terms or if the term is overly one-sided or harsh, the term may be considered unfair and therefore unenforceable under the Australian Consumer Law (Cth).
You will also need to think about when and what Terms will bind the user. For example, it is common that a person who is browsing your website is bound by certain standard Terms when they visit your website, which are really in many ways like a set of disclaimers by you.
Importantly, if your users are going to become members of the website and/or start uploading content, your registration process should force him or her to scroll through your user/member Terms and accept them before their account is created and before they can upload content.
Consider having a minimum age clause. Many shared content sites require a minimum age of 18. Alternatively, sometimes persons over the age of 13 are accepted but only with their parent or guardian’s consent.
You must think about the type of IP licences you need. By way of example, for your platform to run efficiently, you may need your users to grant you (and possibly other users) an IP licence – particularly if copyright subsists in the material which they may post or upload to the website. Such a licence may also allow other users to adapt, remix and distribute content. Similarly, you must also grant your users a licence to access and use your service. This will enable users to download automatically, install updates and any new features.
Will Users Profit or be Remunerated?
If your share platform is social, it is not usual to provide users with payment. However, HitRECord, which promotes itself as a collaborative production company for various creative works, is an example of a collaborative website where users may eventually receive payment for their content sharing. The Terms should clearly outline the payment procedure and/or policy, and if the prospect of payment is very unlikely, then this should also be made clear.
Facilitate a Procedure for Reporting and Dealing With Copyright Infringement
It is important that your Terms acknowledge and respect copyright laws. Accordingly, they may include a clause whereby infringers accounts may be terminated. Further, most shared content websites such as Facebook, Snapchat and HitRECord also have a procedure for reporting copyright infringement, including providing forms to use in reporting suspected copyright breaches. It is in your interest that users know you are proactive concerning copyright.
In summary, consider the type of content you are sharing and the purpose. For example, if you plan on sharing content for the reason of adapting, remixing and distributing/producing, your Terms will need an appropriate IP licence clause. Terms on these websites can often be quite dense and confusing, but it is essential that they are as clear as possible.
If you have any questions about your shared content website, get in touch with our IP lawyers on 1300 544 755.
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