Surprised businesswoman reading through new privacy and copyright regulations that will impact her online community and user generated content strategy
PHOTO: Shutterstock

If your marketing team posts user-generated content (UGC), it may want to keep an eye on the newly amended Article 17 in the European Union — no matter where your brand operates. In April the directive was updated to “ensure adequate protection for authors and artists, while opening up new possibilities for accessing and sharing copyright-protected content online throughout the European Union,” according to an EU press release. 

What does this mean for marketers and brands in the EU? More work ahead ensuring their forums, websites and other digital platforms post content that is copyrighted and complies with the new regulations in the amended law. And what does compliance look like? Probably filtering for copyrighted content before you publish and having an agreement with the license holder that gets them recognition and potentially paid. More on that later. It doesn’t take effect until 2021, but it’s a good time for marketers and brands to prepare their user-generated compliance program.

Time for a Digital Gut-Check

Wait. Are we going back to the stock photo world where all images are safe to use? Is that the safe bet? It doesn't have to be that way, said Kristina Podnar, a digital policy consultant. “We're going to get smart companies creating really smart approaches,” she said. “I don't think we're going to go back to the Dark Ages. I think it's just that people are going to have to rethink the business processes of what we're getting and what we're doing.”

With the Article 17 directive in the EU, companies will need to have a comprehensive understanding what individual rights are in the digital age, according to Podnar, who calls this “a bigger conversation that we've all been ignoring. Digital is new. It is different than analog. It represents different things,” Podnar added. “Let's actually have a conversation about revising our practices and our procedures and make sure that we update them for digital.”

Here are some other things marketers should know about the new European Union directive (PDF) around copyrighted, UGC.

Related Article: How to Mitigate the Risks of User-Generated Content

What Is User-Generated Content?

If a user that’s not employed by your company posts something to your online forum, blog or any digital platform, it’s UGC because, well, the user generates it for your platform. This can include photos, social content, videos, live streams, AR lenses/filters, reviews, forums and comments, according to the Interactive Advertising Bureau (IAB). This would be different than content from an influencer because influencers have a “material connection” with the brand. “The test is whether it can be ‘reasonably expected by the audience’ that no material connection exists between a brand and a user in UGC ‘that might materially affect the weight or credibility of the endorsement,’” according to the IAB’s report on UGC.

Example of UGC: A person posts on Facebook “having an ice-cold beer on this fine Saturday” with a picture of a can of Budweiser. Was Budweiser OK with that?  

Vendors sell software that helps brands leverage UGC. One of the big acquisitions in the space was Adobe’s grab of UGC provider Livefyre in 2016

Why go with UGC? Authenticity of the marketing is one reason. Like-minded people — and not brands themselves — saying something about a product or service can generate interest. "The Consumer Content Report: Influence in the Digital Age" by Stackla revealed 86% of consumers said authenticity is important when deciding what brands they like and support. 

What Does the New Law Mean?

According to EU officials, the UGC directive clarifies the legal framework from which online content sharing platforms based on the UGC model operate. What will companies that process user-generated content have to do?

  • Obtain a license for copyright protected works uploaded by users unless a number of conditions provided for in the directive are met. This will allow content right-holders better negotiation for the conditions of the exploitation of their online works and ensure they’re paid for the online use of their content. 
  • Allow users to still generate and upload content freely, for purposes of quotation, criticism, review, caricature, parody and pastiche. 
  • Be transparent concerning the exploitation of licensed works, as well as have a system for paying license holders and have a “dedicated alternative dispute resolution mechanism.” Software developers are excluded from these rules.

Bottom line? Podnar said in summation, Article 17 transfers responsibility for copyright infringement from individuals who create the content to the owners of the platform where content resides. 

Related Article: Why Adobe Believes in User-Generated Content Marketing

Pre-Moderating User-Generated Content

So what can you do? One major step brands using UGC can take is to “pre-moderate content and verify that what is being uploaded does not infringe copyrights,” Podnar said. “Organizations will no longer be able to rely on that disclaimer on the upload box as they have to date.”

Worrying about copyright is nothing new and something brands should already be watching — whether or not they're in the EU. With Article 17, those on the hook in the EU will need to start asking some hard questions, according to Podnar:

  • Is our UGC effort worth it? What’s the value?
  • Do we need to implement machine-learning processes that can identify copyrighted photos before publishing?
  • Will we have to manually moderate content being uploaded to the site?
  • What do we do about previously-published, copyrighted content posted by users?
  • Do we partner with a third-party to handle copyright monitoring?

More Thoughtfulness Required

David Reischer, Esq., attorney and editor at LegalAdvice.com, said Article 17's imposition of potential liability on a media company for copyright breaches will require marketers to pre-filter content to make sure content is not flagged and forced to be taken down.  “A marketing team needs to be,” he added, “very thoughtful when producing new content, especially when posted on social media accounts, where everything from memes to GIFs will be carefully analyzed by a third-party online platform for any potential infringement.”

Related Article: How to Make User Generated Content Work When You're Not Coca-Cola

You May Need a Strong Filter

If you host a platform where customers can upload information to share publicly, you will likely need to invest in a good filter to check content being uploaded and dedicate staff to flag false positives, according to Podnar. “If you're going to do filters, the filters have to have some level of smart associated with them,” she said. “Otherwise, they're dumb filters.”

If there is a copyrighted photo that is altered lightly, are you still able to identify that? “I think this is going to be an ongoing challenge, especially for platforms that are really, really large and heavily rely on [UGC],” Podnar said. “And I think that's where there might be some interesting logic that an organization decides to take on.”

Going Back to the UGC Drawing Board

Your business may face increased liability and will need to decide whether the risk is worth it, change your UGC strategy and, most certainly, work with your legal team to modify your content ownership and upload policy, Podnar said. “If you are actually allowing a user to upload the content into your system and then applying the filtering after the fact, the reality is, you've already accepted copyright or copyright protected information,” Podnar added.

Maybe this paradigm of how we upload content and share content needs to be disrupted, she added. "Maybe there is a new system where I upload my UGC to my iCloud or Dropbox or a different solution before it’s published," Podnar said. "And then the brand decides if they’re going to go ahead and take in that image of my cat or not. And so there is the opportunity, I think, for a buffering third-party system."

Podnar suggested a few initial steps to get going and ready for compliance on Article 17: auditing your digital channels for UGC and whether the content is associated with any disclaimers or posting conditions; removing UGC that has not been addressed for risks and opportunities until you can document policy and provide a framework; educating your workforce and considering the scenario of marketing under Article 17 and what other approaches you might want to leverage to make up for the reduction in UGC flow.