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Who Owns the Photos You Share Online? Part Two

Where we left off, Facebook-owned Instagram suffered a backlash last December when they introduced a new Terms of Service agreement whose wording led many users to believe that Instagram would now “own” their photos and as such could sell them to advertisers. That wasn’t true, but in response to the fury Instagram changed the wording again — and this time, it gave advertisers even more leeway with user photos.

Instagram was able to put the controversy behind them, but the incident underscored the growing debate over ownership rights for individuals who share photos online. And now, that debate is getting even more complicated.

Britain has just recently passed new legislation which revises the nation’s copyright law. The Act would be a snoozer of a news items except for one thing: it could change how photos are used online, both in the UK and around the world.

The UK’s “Instagram Act”

The Enterprise and Regulatory Reform Act is meant to address the problem of unattributed works across the internet. These “orphaned” works can come from anywhere — from websites to search engines to social networks like Facebook. Up until now, any orphaned works were protected under copyright law from being used at all, which is a real problem for researchers, historians, curators, and other content collectors and generators.

The Enterprise and Regulatory Reform Act — dubbed the “Instagram Act” in a nod to last December’s kerfuffle — is meant to enable those people to use unattributed works, provided they have conducted a “reasonably diligent” search for the works’ creators.

Sounds reasonable so far, huh?

Where it starts to get troubling, however, is the copy-and-paste nature of the Internet. It’s very, very easy to take a photo and reuse it somewhere else — just ask any one of thousands of artists who have spent considerable time and effort trying to remove their works from websites that did not have permission to post them.

Things get even more hairy when it comes to photos shared on social networks such as Facebook , Twitter, and Instagram. Since these photos are stripped of their metadata, they could in a sense be considered “orphans,” leading some in the UK to fear that the personal photos they share online could be claimed for use by anyone, even sublicensed and sold for profit.

Because photos posted on social networks are linked to accounts, it would be difficult for thieves to legally claim they couldn’t reach the creator for permission. For that reason, the average social media user would likely remain unaffected by the new legislation. But professional photographers, who often already have their work copied widely across the Internet without proper credit, could be facing a new and ever-growing mountain of intellectual property headaches.

It’s difficult to know just yet the full impact of the Instagram Act. At best, previously unclaimed but valuable works such as historic photos could now be used in publications and exhibits. At worst, a ruthless new content-scraping industry could grow and feed itself on the web, forcing creators to either pull their photos offline or invest the time and money to officially register each one.

A model for the future?

Some believe that the Instagram Act marks a shift in power away from citizens and towards corporations, which brings us back around to Instagram’s Terms of Service debacle. It’s an encapsulation of the wider intellectual property question on a smaller scale: who really owns the photos posted on a social sharing service? Is it the user who took the photos, or is it the company that runs the service?

Most would say the user owns his or her own content, and I’d tend to agree. But then again, most photo-sharing apps are completely free to download and use. If users don’t pay for the service, then the service has to find other ways to make money.

And so here comes the flood of Sponsored Stories and promotions.

The new reality

This is the new reality of apps: build a rabid fan base around a free service like Instagram, and then turn around and sell that engagement to advertisers.

The new reality of social users, however, is to understand that companies need to make money to survive, and that at some point in their usage of a free service they’re going to either have to give up a portion of their control (i.e; be advertised to) or agree to pay to play.

The golden age of unpaid, advertising-free social sharing services has drawn to a close. And advertisers, knowing that most people are savvy enough to ignore more traditional display advertising, want to use your content to better reach you.

Where will the line between user-generated content and paid promotion be drawn? And will it be drawn at all?

Where do we go from here?

Companies have a responsibility to behave ethically, and act transparently. Users have a responsibility to know that their stuff isn’t always exclusively “theirs” — especially on a free platform.

Instagram and other social networks will surely continue to push perceived intellectual property boundaries. But will it ever be enough to stop anyone from actually using the services?

Only time will tell.

Would you be willing to start paying for apps you previously used for free in order to keep it ad-free? Or could you care less about advertising in your feeds, even advertising that uses your own content? Let me know in the comments below.

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