Whose content is it anyway?

Marcus Winter's picture

Cartoon pony kicking copyright sign

Intellectual Property and crowdsourcing

Intellectual Property (IP) refers to the exclusive rights associated with original creation and broadly encompasses patents, trademarks, designs and copyright [5]. In the context of curation, IP primarily refers to copyright, which applies to written or otherwise recorded original works and regulates the relationships between content owners and non-owners. As researching, obtaining and asserting IP is an integral part of curatorial work, museums and other keepers of digital collections often have internal guidelines on IP related issues. Such internal guidelines aim to prevent the infringement of others' IP and protect the organisation's own IP when presenting collection items to the public, e.g. on the museum's website. But how does user-generated content fit into this settled world of relatively well-defined content ownership? And what do users, i.e. the people who actually create the content, have to say about this?

As copyright is an automatic right, meaning that content creators do not need to register works for copyright to apply [6], it would seem obvious that they own the copyright to their contribution. However, does that still hold if the content is created on somebody else's medium and, once submitted, becomes part of that medium (think visitor book for example or visitor comments on a website)? And how does it affect ownership if multiple contributions are fused into a narrative as for instance in the 10 Most Wanted Case Notes? Experts agree that joint production of content and multiple authorship are key sticking points in assessing copyright in crowdsourcing efforts [2,3].  

This is already pretty bad, but it gets worse. Where current copyright fails to adequately address aspects of editing, transforming, managing and transferring the outputs of social production, it leaves the door open for "private ordering arrangements" [2]. How does it affect ownership if a website has proprietary Terms of Use establishing their own rules? And what if the user has not read the Terms of Use or challenges them in court? There are no clear answers here, so let's stop and take a different approach -

What do volunteers think about Intellectual Property? 

To find out, we carried out a survey* involving 104 structured visitor interviews at Tate ModernFabrica Art Gallery and Brighton and Hove Museums. Assuming that crowdsourcing initiatives in the arts target a culturally interested audience, museum visitors seemed an appropriate population to ask.

In order to make IP related issues more concrete, participants were first presented with six fictional scenarios how a museum might use visitor contributions. For each of them participants were asked whether such use was acceptable or not. The scenarios were designed to successively push boundaries in order to find out where respondents would draw a line. Responses suggest that acceptable use depends on four critical factors: 
    1) Use of content should relate to the original purpose and time in which it was submitted 
    2) The presentation should be proportionate and not unduly expose the contributor
    3) Content should be used anonymously unless there is prior consent to use a name
    4) Commercial uses always require the contributor's express consent   

The interview then turned towards the need for informed consent and how obtaining it might impact on the user experience. This aspect is particularly relevant in the context of game-based crowdsourcing. Huizinga [4] defines games as an activity "connected with no material interest" and "standing quite consciously outside ordinary life". Pointing contributors towards IP issues might pop this artificial context and turn a spur of the moment contribution into a contractual interaction. Responses suggest that while these fears are not completely unfounded, they might be overrated. Most respondents think there should be a notice explaining how content might be used, and a large proportion say that such a notice would not put them off from submitting a comment. Many respondents point out however that a notice would make them more cautious, that they might withhold their name or not contribute at all if they do not agree with the terms.   

The last part of the interview wrapped up the topic by asking participants who they think should own user-generated content submitted to a museum and who they think actually owns it. This question aimed to tease out participants' views on moral and legal ownership and whether there was a difference between the two. Results show a large gap between perceived moral and legal ownership of user-generated content with many respondents seeing ownership unjustly skewed towards the museum. Furthermore, participants' comments hint at a perceived power differential between individual and organisation, not least because the medium through which content is submitted is usually owned or controlled by the organisation. This aspect in particular resonates with Benkler's [1] notion that control over the production process can lead to unilateral appropriation and distort ownership.

What can we learn from this? 

Firstly, people want to be informed about how their content will be used. While they don't want too much information upfront, they would like the option to find out details if required. In 10 Most Wanted this translates into a two-step process for informed consent, with a simple, human-readable version upfront that links to detailed Terms and Conditions.   

Secondly, most people agree that acceptable use of content should relate to the original purpose and time in which it was submitted; should be presented proportionate without unduly exposing the contributor; should be anonymous unless consent was given to use a name; should never be commercial without the contributor's express consent. While some of these aspects are difficult to define in Terms and Conditions, they can at least partially be addressed by making content use more transparent. For instance, 10 Most Wanted Case Notes enable participants to inspect exactly how their content is processed and used by curators.  

Thirdly and perhaps most importantly, many people see ownership of content unjustly skewed towards the museum. As ownership and co-determination are important motivational aspects of crowdsourcing and community production [1], it is critical for museums to be aware of this perceived power differential. 10 Most Wanted addresses this aspect by largely operating on social media which are not owned by the museum, by telling volunteers that they retain the copyright in their contribution, by openly crediting them for their work and by establishing clear lines of communication with the appointed Case Officer for each object.  

We already knew that IP is a tricky topic in crowdsourcing, especially when contributions from multiple volunteers are fused and remediated. However, irrespective of the on-going legal debate, it is important for organisations to understand what their audiences and volunteers think about this topic. Hopefully, our survey made some small steps towards an open discussion of this much neglected aspect of crowdsourcing and helps to inform the design of crowdsourcing platforms and processes.


* The survey was part of a larger study exploring museum visitors' mental models, expectations and preferences when contributing information and feedback in museums and galleries. Please contact the author for more information.    


[1] Benkler, Y. (2002). Coase’s Penguin, or, Linux and The Nature of the Firm. Yale Law Journal, 112, 369–446. 
[2] Elkin-Koren, N. (2011). Tailoring copyright to social production. Theoretical Inquiries in Law, 12(1). 
[3] Hetcher, S. (2007). User-Generated Content and the Future of Copyright : Part One - Investiture of Ownership. Vanderbilt J. of Entertainment and Tech. Law, 10(4), 863–892.
[4] Huizinga, J. (1950). Homo Ludens: A Study of the Play Element in Culture. Boston: The Beacon Press.
[5] IPO (2013a). About copyright. UK Intellectual Property Office. http://www.ipo.gov.uk/types/copy/c-about.htm
[6] IPO (2013b). Automatic right. UK Intellectual Property Office. http://www.ipo.gov.uk/types/copy/c-about/c-auto.htm