Writers Be-Wary: Distribution and Control of Creative Material

Originally published as a Guest Blog on Writer Beware® September 7, 2012
Co-author, Gerald M. Levine

Authors create the content blog aggregators need for their web collections. Each gains in different ways. For the aggregator, the greater the variety of material and the steadier the receipt of content the more valuable the aggregated website. Because aggregating content is a business not a charitable operation, it is natural that aggregator agreements to publish content will primarily reflect the aggregator’s interests. Benefits to authors come in the form of readership and (possibly) recognition which may be a fair exchange even the author is un- or minimally compensated for her work. However, particularly productive authors will wish to retain control over their contributions and may find aggregators’ “Terms of Use” unaccommodating. It is a fair question, What does an author give up in exchange for granting a license for the privilege of having her content aggregated with others and accessible to the searching public?

The consideration in exchange for a license should begin with an appreciation for copyright. This is so because all agreements between publishers and authors start with a grant of rights. The Copyright Act states that “Copyright protection subsists … in original works of authorship fixed in any tangible medium of expression” (§ 102). Content submitted for aggregation is a tangible medium of expression, but remedies for infringement of content come through registration. There is no immediate remedy for unregistered content however egregious the taking. Neither the granting of rights nor the publication of content protects an author against infringement. Copyright registration is not expensive but it may be (or may be thought to be) uneconomical.

The questions concerning aggregator “Terms of Use” are not simply academic. They can affect an author’s future. Active content creators produce volumes of original material which can be collected and reworked into other formats. It is one thing to confer limited rights of publication and distribution of content on a nonexclusive basis and another to lose control of other statutory rights. One of the exclusive rights an author has under the Copyright Act is the right “to prepare derivative works based upon the copyrighted work” (§ 106(2)). Exclusive licenses are not typical in aggregator agreements, but there is a form of nonexclusive license that has some worrying features.

It is prudent before granting rights for the author to carefully examine the terms under which the aggregator accept content in exchange for publication. Not all terms are equally beneficial to the author. There are different monetizing models, all of which have the ultimate purpose of creating revenue for the aggregator. Some aggregators create libraries of material which are accessed for payment. Other aggregators generate revenue from the advertising on their websites. Some models may share the revenue with authors.

The potential problems are illustrated by several examples. In drawing attention to terms in the following agreements we are not suggesting any deliberate attempt to benefit at the author’s expense, but we are pointing out that the agreements are essentially on a “take it or leave it” basis, which is always a sign for caution.

1. The ODP (Open Directory Project) is a comprehensive directory of Web resources.
In exchange for ODP’s agreement to include an author’s work the author agrees:

To grant AOL LLC. Corporation a non-exclusive, royalty-free license to use, publish, copy, edit, modify, or create derivative works from my submission.

The catch is “edit, modify or create derivative works from my submission.” Although the ODP license is nonexclusive the author grants AOL extensive rights to the blog content. The author can terminate the license but AOL owns any derivative work it creates, but the derivative works created from the author’s submission are owned by the aggregator “royalty free.”

2. BLOGLINES is an aggregator of syndicated news feeds operated by WYBS.
The Bloglines Terms of Service assert that “WYBS does not claim ownership of the Content you place on your Private Page or Public Page,” but “[b]y uploading, submitting or otherwise disclosing or distributing content of any kind on the WYBS website or otherwise through the Bloglines Service, you” – here comes the kicker –

[You] Grant to WYBS, its affiliates and their assignees the perpetual, irrevocable, non-exclusive, royalty-free right to use, reproduce, display, perform, adapt, modify, distribute, make derivative works of and otherwise exploit such content in any form for the purpose of providing the Bloglines Service, including without limitation, any concepts, ideas or know-how embodied therein….

Even though Bloglines disclaims ownership of blog content, the author has lost control of her work. She has granted WYBS the right to “exploit such content in any for” and in any way it chooses to on a “perpetual [and] irrevocable” basis that includes the right “without limitation … to exploit such content … an any concepts, ideas or know-how embodied therein.” The “non-exclusive” is meaningful only to the extent that the author has the means to exploit the work in the same fashion as the aggregator.

3. Curata is a content curator for businesses which describes itself as “how smart marketers produce a consistent stream of high-quality content.”

Curata’s Terms of Use state that:

“By submitting, posting or displaying Content you give us an irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Website. You represent and warrant to us that you have all the rights, power and authority necessary to grant the above license. You agree that you are solely responsible for (and that we have no responsibility to you or to any third party for) any Content that you create, transmit or display or permit to be created, transmitted or displayed while using the System and for the consequences of such actions (including any loss or damage which we may suffer) by doing so.”

While Curata does not use the term “derivative” the author has all but granted it in the terms “adapt, modify … publicly perform [and] publicly display” the substance of the work.

In each of these examples, the author has licensed aggegator the right to exploit her work. It is not as though she does not have the same rights or is inhibited in licensing to others but the exploiting by aggregators is without approval, and without approval she has no control. Authors should assess the benefits, consider what they are prepared to give up in exchange for publication of their works to audiences larger than they themselves can attract and make their decisions with knowledge that they lose control of many of their copyright rights. Productive authors should be particularly careful because for them original content can be collected or packaged in different formats or reworked into books for traditional or e-publishers.

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