Freelance authors are on the rise. According to a 2017 survey, 50.9% of the US population will be freelancing in ten years if the current trend continues.[1] With the rise in freelancers, there are growing concerns about freelancer rights and the bargaining power of large media publishers. Professor D’Agostino has done extensive research in this area and in her book titled, “Copyright, Contracts, Creators: New Media, New Rules” she sheds insight on this issue by focusing primarily on freelancers in the newspaper and magazine industries.[2] Her insight equally applies to other content industries, such as photography, where photos are increasingly created and shared in the digital world.

Professor D’Agostino mentions that granting exploitation rights to owners of original works is one of the key objectives of copyright law.[3] Yet, it seems like social media platforms such as Instagram and Facebook are essentially granting themselves broad licences via their terms and conditions. Professor D’Agostino reiterates this point when she says, “The current proliferation of digital technologies expands the publisher’s powers and puts the supposed objectives of copyright law under strain.”[4] At first glance, it might seem like social media is a solution to this problem by giving users the opportunity to post images and, depending on their follower base, have the opportunity to make money for each post. A freelancer’s dream, right? Not exactly. It turns out that Facebook and Instagram’s terms and conditions contain that scary licence provision that not many users know about.

Terms and Conditions: A Mandatory Licence

It seems as though social media platforms are a good example of the need to raise awareness of the non-exclusive licence. Take Instagram, for example, their terms and conditions include the following:

“… you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly ("private") will not be distributed outside the Instagram Services.”[5]

It begs the question, why would Instagram need to modify a post, add to it, or distribute it on another media channel? One can understand why public performance is required given that Instagram is a platform whereby it gives creators the means to display their content on a global scale. Yet, with social media influencers making thousands per post, the fact that Instagram can modify it and display it in any media formats through any media channels seems problematic when content creators want to be able to still have control over the content that is providing them income.

Facebook’s terms and services include the following:

“… you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings).”[6]

This is an another example of a broad licence, with the main concern being the lack of control over the distribution of the content. Ultimately, this may be the risk users need to take when displaying content over social media.

The Price Creators Pay

All in all, although these broad licences seem scary they are the reality of the digital age. These social media platforms definitely need a licence to carry out their intended functions, but do they need to be this broad? One can only imagine a situation where Facebook creates a derivative work using one of your photos. Much like freelance journalists are vulnerable to publishers as independent contractors[7], users of Instagram and Facebook that post content are vulnerable to the social media powerhouses. Although there is no monetary price to post their content, they pay with a licence.

If, by chance, a user does read the Instagram terms and conditions in their entirety and decides they do not want to grant such a licence, they are free to not engage with the platform. The tradeoff is that they might miss out on potential profits and global exposure. A solution? Creators may wish to resort to a private website platform, but there is no guarantee that they will not require a similar type of licence. Until protective measures such as legislation or case law come to the rescue, to move forward in the digital age, creators will have to be prepared to hand out licences along the way.

Written by Lauren Chypyha, JD Candidate 2020, enrolled in Professors D’Agostino and Vaver 2019/2020 IP & Technology Law Intensive Program at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.

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[1] Elaine Pofeldt, “Are We Ready For A Workforce That is 50% Freelance” (17 October 2017), online: Forbes

<https://www.forbes.com/sites/elainepofeldt/2017/10/17/are-we-ready-for-a-workforce-that-is-50-freelance/#326099fe3f82>.

[2] Giuseppina D’Agostino, Copyright, Contracts, Creators: New Media, New Rules (Cheltenham: Edward Elgar Publishing Limited, 2010).

[3] Ibid at 16.

[4] Ibid at 3.

[5] Instagram, “Terms of Use” (19 January 2013), online: Instagram

<https://www.instagram.com/about/legal/terms/before-january-19-2013/>.

[6] Facebook, “Terms of Service” (31 July 2019), online: Facebook < https://www.facebook.com/terms.php>

[7] D’Agostino, supra note 2 at 8.

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As was discussed in the��IPilogue by Nicholas Arruda, Friday’s ruling stems from a�� ��filed by former UCLA basketball star Ed O’Bannon. O’Bannon and nineteen others sued the NCAA, claiming that the organization violated the ��because of its rules that prohibit student-athletes from receiving a share of the revenue earned by the NCAA and its schools from selling ��licenses to use the names, images, and likenesses of its athletes in footage like live game telecasts, commemorative DVDs, and video games. NCAA regulations only allow its players to receive money for attending school and through scholarships, arguing that their restrictions on compensation for student-athletes are necessary “to uphold its educational mission and to protect the popularity of collegiate sports.”

U.S. District Judge Claudia Wilken did not agree with the NCAA, and at the end of her ninety-nine page ��she issued an injunction prohibiting the NCAA from continuing on in its ways. Taking effect at the start of the next Bowl Subdivision Football and Division I Basketball recruiting cycle, student-athletes will now receive a share of the revenue generated from the use of their likenesses. The funds will be held in a trust until the student leaves school or is no longer able to compete. The injunction allows the NCAA to set a cap on how much they give to its athletes, however it does “prohibit the NCAA from setting a cap of less than five thousand dollars (in 2014 dollars) for every year that the student-athlete remains academically eligible to compete.” Schools also have the option to offer a lower amount, but only if the schools do not illegally conspire with each other when setting the number.

Those on team NCAA are not exactly happy with the loss, and have already reportedly����an intention to appeal the decision. Those on the opposite side of the court to O’Bannon ��that paying players and moving away from amateurism (where “players participate for the love of the game”) would cause a drop in the number of college sport spectators and would create an imbalance among schools and conferences. NCAA witnesses further contended that the education athletes receive is in fact payment for their services.

Several players however testified that they viewed being an athlete and not a student as their main job while at college.�� According to O’Bannon testified: “I was an athlete masquerading as a student...I was there strictly to play basketball. I did basically the minimum to make sure I kept my eligibility academically so I could continue to play.” Co-lead counsel for the plaintiffs Bill Isaacson to the media that he was pleased with the verdict, calling it a “major step towards decency for college athletes.” Furthermore, Rutgers law professor Michael Carrier, who specializes in antitrust and IP law, reportedly the outcome may not actually be that scary since payouts may not be huge and will only come to the athlete after their career is over.�� In a statement to USA Today, Carrier does however ��that the decision��is a huge loss for the NCAA because their prized defences of amateurism and competitive balance ��are no longer persuasive in the face of an argument of fairness. As O’Bannon reportedly :��“It is only fair that your own name, image and likeness belong to you, regardless of your definition of amateurism. Judge Wilken’s ruling ensures that basic principle shall apply to all participants in college athletics.”

So what now? In a very opinionated about the decision��CBS Sports’ senior college football columnist Dennis Dodd said that “a seal has been broken. Players can be paid, and we can’t turn back from here.” And since the ruling is limited to male football and basketball players surely the cause will also be taken up by female athletes and those in other sports. The future implications of the decision, from its impact on the structure of American college sports, the potential influence it will have on athletes in other jurisdictions, and to the financial consequences for major sport colleges, speaks to just how important IP law issues are in all realms, whether it be business, sport, or education. The fact is, you have a right to you - it does not matter if you work in an office tower or run drills in a gym. Your name, image, and likeness are yours and, as confirmed by Justice Wilken, they are not for someone else to benefit from for free.

Jaimie Franks is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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In , Yehuda Pinto sought damages for copyright infringement of materials he prepared during his 14-year period working with the (BJEC) and the curriculum.Pinto Began working as a freelancer for TaL AM in 1992. His work involved original compositions, arranging traditional songs, and various other aspects of the musical component of the Tal AM curriculum. Since there was no written contract, the court had to make a determination as to what agreement the parties reached at the time. BJEC always paid Pinto at an hourly rate and he never received any royalties for the use of his works, though he did once receive a bonus as a thank you for his contributions.

The relationship ended in 2006 when an employee of BJEC discovered hidden copyright annotations in Pinto’s invoices. The documents were submitted electronically and contained white text on a white background, claiming that copyright in the works would remain with Pinto. At that time, BJEC required that Pinto either sign a document stating that all of his compositions were the property of TaL AM or an acknowledgement that his services would be terminated.

Copyright Ownership

At trial, both parties agreed that Pinto owned the Copyright to 58 of his original compositions pursuant to of the Copyright Act, which states that the author of a work is the first owner of copyright. His works were BJEC, since he was a freelancer and he did not sign the agreement, opting instead to end the relationship. In other works such as the actual songs, the Court found BJEC and Pinto to be joint authors. BJEC was also held to be the of the sound recordings, since they bore the associated financial risks. Finally, if Pinto consented to the use of the underlying works, BJEC ��held the copyright in the of the curriculum.

Additionally, Pinto did not assign the copyright because such an assignment must be in writing, per of the Act, and once again there was never any written contract or an agreement between the parties. Therefore, the central question before the Court was whether Pinto consented to the use of his works as a part of the contract for his services. The Court held that Pinto granted an implied licence to use his works and the actions of the defendants were within the scope of the licence. The action was dismissed.

Implied Consent

According to��, the burden of proof of lack of consent is on the party seeking to establish infringement.�� In its analysis, the Court stated that the testimony given did indeed establish that Pinto granted consent to use his work. He knew that his work was commissioned for Tal AM, and during the proceedings he acknowledged that he permitted BJEC to use his music for the TaL AM curriculum.��Pinto’s request for a written contract was not evidence of a lack consent. Pinto had argued that his repeated requests for a written contract to protect his “rights” established that he did not grant a licence.�� The Court reasoned that the fact that he continued to work with BJEC after they refused his requests meant that he impliedly consented to the terms as presented by the defendants.

In , the Supreme Court held that when a work is created at the request of a purchaser, the Court��can find an implied licence to use the work for the purpose for which it was created. Therefore, through the continued relationship, Pinto implied consent to the use of the works in the TaL AM curriculum.��The Court further held that there were no limitations put on the consent. No restrictions were communicated by Pinto, nor were they reasonably contemplated by the parties at the time.

Lessons for the Future

The lesson from this case is to make sure everything in writing. The relationship could have been preserved had the parties’ expectations been made clear from the start through a negotiation of rights and remuneration. Moreover, BJEC could have negotiated ownership of the works from the beginning as part of the contract for services. Alternately, if Pinto had held firm in his request for a written agreement, perhaps he would not have granted an implied licence. If he stopped working for BJEC immediately after the refusal he could argue that there was no implied consent to BJEC's terms. This ruling is a reminder to authors that even though they can retain copyright in their works, they may lose some degree of control over their use if they grant implied licences by continuing a "for service" relationship. The importance of this reminder is amplified in this context because in copyright, it’s all about control.

Allison McLean is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.��

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In a much publicized move, Amazon two books from users' e-book readers. It causes one to wonder what rights we actually have in our digital possessions in this increasingly connected world.

As you quickly learn when you start studying IP law, property rights become a lot more complicated when you're not dealing with physical objects. It's not too hard to figure out who owns a hardcover book and it's straightforward to give, lend or sell your copy. You own a book---a bundle of pages covered in ink---and you can do with that as you please. You don't own the work, the author probably owns that but there is no need to talk of licensing, because when you give away the book your ability to read it goes away too.

Digital content is different because there is no object you can point to and say: "I own that." You might say you own the file, but a file is a tricky thing to pin down. You can (and should) have multiple copies of files. You move a file to a new location by creating a fresh copy and destroying the old one. You can share it with a friend, retain the ability to use it yourself and, more tellingly, you retain the right to use it while your friend gets nothing. The best you can say is that you have some licence to copy and use the work. But the average consumer is used to thinking that he owns something in the traditional sense and it can be frustrating when reality doesn't match up with expectations.

You do own the device on which you store and play the file but, as Dugie Standeford points out in a at IP Watch, your control over the device is incomplete. It's hard to imagine someone from Chapters coming to your house and demanding a book back because they didn't have the right to sell it. But we've seen Amazon do it. Many devices (computers, phones, personal video records, MP3 players, and so on) phone home daily or weekly to check for software updates or download information. The ability the companies have to alter content stored on your devices is limited only by your user agreement---which is to say that it's probably not limited at all. This, too, differs from traditional expectations.

In this world of content in which our rights are dependent on licences and devices that are controlled remotely by the manufacturers, are new laws needed to protect consumers? It depends on what you mean by new. Certainly governments need to protect reasonable consumer expectations. For example, if I buy a digital audio player that plays MP3s, I reasonably expect that it will continue to do that in the future. It would be unfair if that feature was removed. This, however, is just another application or an extension of existing consumer protection laws. If companies are using these devices to exclude content from other sources, we have competition law. As Standeford's post says, this is just what regulators have been doing for years.

Policymakers must be careful to not get too excited about safeguarding consumer expectations derived from physical possession and non-networked devices. New technology will always surprise or annoy some people but that is no reason to hold it back in all cases. If you buy a reclining chair, you don't expect the manufacturer to come to your house and prevent it from reclining. If it turns out that this specific model of chair has been collapsing and injuring owners, however, you might wish that they would and you might also want to be compensated. There is a balance to be struck between the old ways and the new possibilities.

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