UK Web Focus (Brian Kelly)

Innovation and best practices for the Web

Commercial Exploitation of Content and the Instagram Story

Posted by Brian Kelly on 20 Dec 2012

Licence Conditions for this Blog

Creative Commons licenceOn 12 January 2011 I described how Non-Commercial Use Restriction [had been] Removed From This Blog. This post explained how:

The BY-NC-SA licence was chosen [in 2005] as it seemed at the time to provide a safe option, allowing the resources to be reused by others in the sector whilst retaining the right to commercially exploit the resources. In reality, however, the resources haven’t been exploited commercially and increasingly the sector is becoming aware of the difficulties in licensing resources which excludes commercial use, as described by Peter Murray-Rust in a recent post on “Why I and you should avoid NC licence“.

I have therefore decided that from 1 January 2011 posts and comments published on this blog will be licenced with a Creative Commons Attribution-ShareAlike 2.0 licence (CC BY-SA).

Later that year, on 24 October 2011 in a post entitled My Activities for Open Access Week 2011 I described how the licence conditions had been liberalised from CC-BY-SA to CC-BY. The post provided the background to the changes of the licence conditions:

… the share-alike clause can also provide difficulties in allowing others to reuse the content. Although I would encourage others to adopt a similar Creative Commons licence I realise that this may not also be achievable. So rather than requiring this as part of the licence, I will now simply encourage others who use posts published on this blog to make derived works available under a Creative Commons licence and limit the licence conditions to a CC-BY licence which states that:

You are free:

    • to copy, distribute, display, and perform the work
    • to make derivative works
    • to make commercial use of the work

Under the following conditions:

    • Attribution — You must give the original author credit.

These developments reflect a more general move towards the minimisation of barriers to the reuse of content, not just by others in the public sector but by the wider community. Such policies can help to stimulate growth in the economy by ensuring that resources are spent in development activities and not in negotiating licences. Such approaches are well-established in the software development environment in which open source software products are freely-available for everyone to use (large companies, such as Microsoft, thus benefit from using open source software products such as the Apache Web server). In the area of content, Peter Murray-Rust has argued that Scientists should NEVER use CC-NC. This explains why.

Commercial Exploitation of Content

Whilst there is a growing, but by no means universal, understanding of the benefits of allowing commercial exploitation of content, moves towards licences which grant commercial companies the right to commercially exploit content uploaded to their services tend to generate anger, as we have seen from the recent changes to the terms and conditions for users of the Instagram photo-sharing service. “Instagram makes you the product” argued Josh Halliday in The Guardian whilst TechCruch reported how “The Backlash Continues: Zuck’s Sis Doesn’t Seem To Like The Instagram Changes Either“.

But there is another angle to this story. Another TechCrunch article entitled “Quit Instagram, They Said. They’re Selling Your Photos, They Said.” poked fun at the outrage whilst in an article entitled “No, Instagram can’t sell your photos: what the new terms of service really mean” The Verge provided a more measured summary of the changes in the terms and conditions.

Yesterday Instragram responded to the storm in the blogosphere in which they acknowledged mistakes in the announcement regarding the changes: Thank you, and we’re listening. The post addresses some of the concerns which have been raised:

Ownership Rights Instagram users own their content and Instagram does not claim any ownership rights over your photos. Nothing about this has changed. We respect that there are creative artists and hobbyists alike that pour their heart into creating beautiful photos, and we respect that your photos are your photos.

Privacy Settings Nothing has changed about the control you have over who can see your photos. If you set your photos to private, Instagram only shares your photos with the people you’ve approved to follow you. We hope that this simple control makes it easy for everyone to decide what level of privacy makes sense.

The real change related to how Instagram would seek to make money, both to cover the costs of providing a global photo-sharing service, as well as to make money for the company:

Advertising on Instagram From the start, Instagram was created to become a business. Advertising is one of many ways that Instagram can become a self-sustaining business, but not the only one. Our intention in updating the terms was to communicate that we’d like to experiment with innovative advertising that feels appropriate on Instagram. Instead it was interpreted by many that we were going to sell your photos to others without any compensation.

Personally I’m quite happy to make use of a service such as Instagram for free. I also acknowledge that the company is neither a charity nor a public-sector organisation and has a legitimate need to make money. It has provided notification of changes to its terms and conditions which clarifies how it will seek to make money from “innovative advertising that feels appropriate on Instagram“.

I am also willing for others to commercially exploit content which I have released under a Creative Commons licence which does not exclude commercial use. I wonder if those who are unhappy with Instagram’s terms and conditions will apply the same arguments to content released under a CC-BY licence? Yes, such content could be used in ways you may not approve of. Accept this – and avoid applying discriminatory licence conditions. Open source software developers learnt this lesson long ago.

I’ll conclude by suggesting that if anyone wishes to respond to this post by using the “If you’re not paying for the product, you are the product” cliché, you should read the Powazek post on I’m Not The Product, But I Play One On The Internet which describes how:

There are several subtextual assumptions present in “you are the product” I think are dangerous or just plain wrong that I’m going to attempt to tease out here. Many of these thoughts have been triggered by Instagram’s recent cluelessness, but they’re not limited to that. I also want to be clear that I’m not arguing that everything should be free or that we shouldn’t examine the business plans of the services we consume. Mostly I’m just trying to bring some scrutiny to this over-used truism.

Many thanks to Wilbert Kraan for alerting me to this post last night. The post could, of course, have pointed out that the absurdity of applying the cliché to use of Creative Commons content.

View Twitter conversation from: [Topsy]

4 Responses to “Commercial Exploitation of Content and the Instagram Story”

  1. Charles Oppenheim said

    Very good of Instagram to backtrack, but their proposed new terms and conditions DID make it possible for them to exploit others’ materials for commercial gain. I don’t buy the idea that the revised terms were not properly thought through and should have been worded better. The revised terms were (in my view) deliberately broadly worded and could have been used to exploit photos in the way some complained about.

  2. […] "Whilst there is a growing, but by no means universal, understanding of the benefits of allowing commercial exploitation of content, moves towards licences which grant commercial companies the right to commercially exploit content uploaded to their services tend to generate anger, as we have seen from the recent changes to the terms and conditions for users of the Instagram photo-sharing service. "  […]

  3. Julian Prior said

    Interesting post Brian even though I don’t agree with your call to “avoid applying discriminatory licence conditions” by avoiding NC and SA licences. While not without its problems the CC-NC licence does enable content creators to make a legitimate stand against the commodification and monetisation of their work if they so wish. To me it is more discriminatory to allow commercial vendors to take openly licensed content and charge for it, thereby restricting access to that content.

    Does that make me an idealist?

    • Hi Julian
      I don’t see how taking openly licensed content and charging for it, would restrict access to that content. In the Instagram example, they are looking for ways to monetise the content – but the content is still owned by you – access isn’t restricted.

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