Copyright lawyers and people who work in rights departments understand the need for exercising caution when seeking permission. We are all accustomed to seeing journalists reach out to uploaders on Twitter during breaking news events saying, “Can we use your picture?” Those that have been trained will first ask, “Did you take this picture?” What is not clear for uploaders is how that picture is going to be used. Technically, someone who uploads a three-minute video on YouTube can complain that the video hasn’t been used in its entirety. When the video is taken down from YouTube, cut and edited into a wider package, the original meaning of the video could be lost. In this case an uploader has the right to complain, unless he or she granted permission for this to happen. Similarly, an uploader might agree to his or her content being used by the program that reaches out, not realizing that it could be used by any other news organization under the same corporate umbrella, or even used by a completely different news organization that happens to have a syndication deal in place with the first. But these complexities are very difficult to spell out to uploaders, many of whom have just been caught up in a breaking news event. The specific ways that permission is sought were raised in every interview. Some respondents were happy with a tweeted “yes,” while others require signed documents. One interviewer described internal discussions about this issue: It was a vigorous discussion about whether a Twitter “yes” would be enough. I was saying, “No, it wouldn’t be,” and other people were saying, “Well, yes, but a few years ago you would have said that an email wouldn’t be enough; you’d have wanted a fax, and before that you’d have wanted it written with a quill pen and a stamp on it.” So, I mean, everything is evolving and things are changing.
Producers regularly using social media for newsgathering expressed the difficulties of balancing the need for watertight legal protection with the informal nature of social media. As one explained, “If you are chatting with someone via DM [Twitter direct messaging] and suddenly you’re saying, ‘What is your email address?’ and ‘Can I send you this form and can you print it out, sign it, and scan it back?’ That’s just not going to happen.” The AP and Reuters explained that they always need permission granted before they will distribute content, but admitted that in very rare cases they will use content when it has been impossible to contact the uploader. Fergus Bell from the AP explained, “If it’s very, very newsworthy and we know that it’s just that they can’t communicate at the moment and we don’t suspect that there would be a reason why they would prevent us from using it [we will use it]. We will also follow up afterwards.” As the messages posted on an Instagram account during Typhoon Haiyan illustrate, journalists know they have to seek permission, but the pressures of the job often conflict with the realities of people’s lives when they are caught up in a news event. When uploader Marcjan Maloon didn’t reply to the repeated requests of any journalists for four days, someone had to remind them that it was unlikely he would even be able to reply—as “there was still no power in Tacloban City.” Another significant problem is that uploaders themselves often don’t know their own rights, and don’t understand enough about the news business— particularly archive, distribution, and syndication elements. “We’ve got to make it so clear to them because [copyright] is not something that people always understand,” said one journalist. Both AP and Reuters told us that they required permission via an email exchange, and both have wording that has been signed off by their legal departments. The agencies emphasized that because uploaders haven’t necessarily heard of them, and don’t understand how content is regularly distributed, they have to make sure they have explained the process fully.
An interesting side note: Some broadcasters might be using the agencies, not just as an insurance policy in terms of verification, but also in terms of rights. As someone from one of the agencies argued, “I think part of the [decision to run with pictures before getting clearance] is a risk calculation on the broadcasters’ part, because they know that we’re working on getting the clearance, so they’re thinking, ‘The clearance will come. Let’s just run it.’ ”