NZ ISP slammed for content ownership grab

Leading New Zealand Internet service provider (ISP) Xtra is backtracking on its decision to change its terms and conditions after a public outcry over a new clause which seemed to give Xtra ownership rights over copy sent over its network.

On Friday Xtra Ltd., the country’s largest ISP, sent users an e-mail alerting them to changes in the terms and conditions. In particular, clause four of the Xtra’s service terms relates to intellectual property and says: “By placing any content, software or anything else (“Materials”) on our Web sites or Systems (including posting messages, uploading files, importing data or engaging in any other form of communication), you grant to Xtra a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, worldwide license.”

Newsgroups were inundated with users outraged at what seemed to be an attempt to subvert their ownership of any intellectual property that passes through or resides on an Xtra server.

The clause includes the following types of communication: “…e-mail services, information services, bulletin board services, chat areas, news groups, forums, groups, personal Web pages, calendars, photo albums, file cabinets and/or other message or communication facilities designed to enable you to communicate with others.”

Auckland-based IT law specialist Mark Copeland says the owner of any artistic work is always the creator and that Xtra had clearly gone too far with the clause.

“I’d say it’s unquestionably too wide. It’s not maintainable and if they relied on it as a defence should they re-publish someone’s work after it was sent by e-mail to, say, an editor, then they’d be in hot water.”

However Xtra says it only introduced the clause to allow it to fulfill its obligations to customers.

“The intention of these (changes) is to make clear that Xtra and its suppliers are able to deal with materials given to them by customers for the purposes of running their services.”

To that end, Xtra has revised its wording to include a disclaimer: “Xtra does not claim ownership of any content or material you provide or make available through the Services.”

However another Auckland IT law specialist, Averill Parkinson, says even that may not be enough.

“The new clause focuses on the reason a user put the material on the site when it should be focused on what Xtra is going to be doing with that material. It’s the wrong way round, really.”

The new terms take effect from May 4.

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