legal aspects of new media quirk 2008
DESCRIPTION
This is an update to my presentation on legal issues arising out of new media. I will present this version at a series of breakfast talks hosted by Quirk.bizTRANSCRIPT
New Media and the law
Who am I?New media lawyer, blogger, social
media fanatic
Social media is very good!
It is even better than ...
But there are risks
Don’t panic
The legal stuff ...
Issues to consider ...
✦ Freedom of expression
✦ Content licensing
✦ Privacy
✦ Unlawful competition
(we call it “Freedom of Expression”)
This is the right ...
There are competing rights ...
versus
“Freedom of the press does not mean that the press is free to ruin a reputation or break a confidence, or to pollute the cause of justice or to do anything that is unlawful. However freedom of the press does mean that there should be no
censorship. No unreasonable restraint should be placed on the press as to what they should publish.”
“Because they have never been exposed to the sinful ways of the West, the various tribes of South Africa live healthy and peaceful lives, only occasionally indulging in a bit of ethnic cleansing.”
It is a careful balancing act
Content
What is copyright?
✦ Exclusive rights
✦ Works embodying intellectual content
✦ Authorise others
✦ Perform certain acts (for example, to exploit works for personal gain or profit)
There are exemptions
from copyright infringement
✦ Fair dealing
✦ Use for judicial proceedings
✦ Quotations
✦ Illustrations for teaching
✦ Ephemeral copies
✦ Works delivered in public
✦ Reproductions in press or broadcast
✦ Official texts, political speeches, news of the day
Is sharing caring?
✦ Copyright vests by default
✦ Copyright Act 98 of 1978
✦ Severely limits how content can be used without permission
✦ Not conducive to Web 2.0 free luvin’
There is another option ...
What is Creative Commons all about?
Creative Commons licenses are free licenses that permit a range of uses of content licensed
under them
Creative Commons licenses work within the framework established by Copyright
http://creativecommons.org/about/licenses/meet-the-licenses
How about a practical example
36 Ghosts IV by Nine Inch Nails released under a Creative Commons Attribution Non-Commercial ShareAlike 3.0 US license
✦ Free download (9 tracks)
✦ $5 download (all 4 albums, high quality)*
✦ $10 2 CD set (including download)
✦ $75 deluxe edition 2 CD, 1 DVD, 1 Blu-ray disc (don’t forget the downloads)
✦ $300 Ultra-deluxe edition superpack
* I bought one one these ... and I am barely a fan
So what happened?
2 500 x $300 = $750 000
$1 619 420 in the first week of sales*
*According to Rolling Stone: http://www.rollingstone.com/rockdaily/index.php/2008/03/13/nine-inch-nails-ghosts-i-iv-makes-trent-reznor-an-instant-millionaire/
Oh, and NIN isn’t signed to a major record label
and it isn’t just about the big bands
Jonathan Coulton
jonathancoulton.com
Unlawful competition
Customer relationships
✦ Employees are the face of a company
✦ Who really forms relationships with customers?
✦ Are employers protected if employees leave?
✦ Who has the power?
The stick
Restraint of trade provisions*
Monitor data transfers and employee communications
Disciplinary procedures
Dismissals
*Most definitely enforceable
The carrot
Participate in relationship building exercises with customers
Look after employees
Take an interest in who is saying what to whom
Privacy
Which of these do you use?
How much do you publish online?
What happens to what you publish
online?
What can you do?
Take your chances
or ...
Read the terms of use
Read the privacy policy
Draw lines in the sand
✦ What information is most sensitive?
✦ Decide to never let that information out into the wild.
✦ Everything else is compromised and public.
Claim your identity on the Web
on the other hand you could be the provider ...
in which case there are a couple things to bear in
mind ...
There are rules about gathering personal information
“personal information”1 means information about an identifiable, natural person, and in so far as it is applicable, an identifiable, juristic person, including, but not limited to- a) information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person;
b) information relating to the education or the medical, criminal or employment history of the person or information relating to financial transactions in which the person has been involved;
c) any identifying number, symbol or other particular assigned to the person;
d) the address, fingerprints or blood type of the person;
e) the personal opinions, views or preferences of the person, except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual;
f) correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence;
g) the views or opinions of another individual about the person;
h) the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the person, but excluding the name of the other individual where it appears with the views or opinions of the other individual; and
i) the name of the person where it appears with other personal information relating to the person or where the disclosure of the name itself would reveal information about the person;
j) but excludes information about a natural person who has been dead, or a juristic person that has ceased to exist, for more than 20 years;
Draft Protection of Personal Information Bill
How would this affect you?
Makes biometric security
systems a little tricky
Suddenly people’s opinions you may gather
are protected as personal information
Do you have a privacy policy?
Privacy in social media
✦ Can be tricky
✦ Read the terms of use
✦ Be sensible about sensitive information
✦ There can be outages and exploits
Run for the hills?
✦ No, it is not all bad
✦ Social media has much to offer businesses
✦ The main thing is to be aware of the risks ...
✦ ... and provide for them
My contact details
✦ Paul Jacobson
✦ 083 444 8260
✦ pauljacobson.org
paul.myplaxo.com
linkedin.com/in/paulj
twitter.com/pauljacobson
pownce.com/pauljacobson
Where you can find me
pejrm1
Selected image credits*✦ Slide 3: Image by Cambodia4Kidsorg (http://www.flickr.com/photos/cambodia4kidsorg/354932362/) licensed under Creative
Commons Attribution 2.0 license;
✦ Slide 5: Listen to ME! by Orange Beard (Creative Commons BY 2.0) at http://www.flickr.com/photos/metrojp/92038203/;
✦ Slide 6: the conversation by polandeze (Creative Commons BY 2.0) at http://flickr.com/photos/polandeze/1206596658/;
✦ Slide 7: Sharing birthday cake by efleming (Creative Commons BY 2.0) at http://www.flickr.com/photos/efleming/237379252/;
✦ Slide 8: Untitled by ms.Tea (http://flickr.com/photos/teagrrl/79351300/in/set-1689764/) licensed under a Creative Commons Attribution 2.0 license;
✦ Slide 11: Constitutional Court by Paul Jacobson licensed under Creative Commons Attribution ShareAlike 2.0 license;
✦ Slide 13: Free speech zone by mus (http://flickr.com/photos/mus/3457967/) licensed under Creative Commons Attribution ShareAlike 2.0 license;
✦ Slide 15: Doors of the Constitutional Court by Paul Jacobson licensed under a Creative Commons Attribution ShareAlike 2.0 license;
✦ Slide 18: Balancing Act by zeebleoop (http://flickr.com/photos/zeebleoop/325400310/) licensed under a Creative Commons Attribution No Derivatives 2.0 license;
✦ Slide 19: Free Content for a Free Society! 7/12 by Matthias Mehldau (Creative Commons BY 2.0) at http://flickr.com/photos/wetterfrosch/130493617/;
✦ Slide 24: More sheet music by pfly (http://flickr.com/photos/pfly/128167751/) licensed under Creative Commons Attribution ShareAlike 2.0 license;
✦ Slide 26: Vinyl by stevecadman (http://flickr.com/photos/stevecadman/172600054/) licensed under Creative Commons Attribution ShareAlike 2.0 license;
✦ Slide 28: copyright by tuppus (http://flickr.com/photos/tupwanders/79458852/) licensed under Creative Commons Attribution 2.0 license ...
✦ Slide 60: my fingerprint (index, left hand) (http://flickr.com/photos/fazen/3778408/) licensed under a Creative Commons Attribution 2.0 license;
✦ Slide 61: interview (http://flickr.com/photos/timsnell/1387723389/) licensed under a Creative Commons Attribution No-Derivatives 2.0 license.
*All images used are available under license from iStockphoto.com, have been licensed under Creative Commons license or are in the public domain. Where the images