Your Country, Your Call seems a positive idea, although many are at a loss as to what, exactly, it involves. We might not know the answer until the competition concludes but, in the meantime, some controversy has erupted online about its terms and conditions (tucked away in a PDF on the YCYC website).
Simon McGarr covers the background to the competition and the problems with its terms in this excellent post. In summary: entrants are required to cede extensive intellectual property rights to the competition organisers and the winners can be forced to hand over ownership of their ideas, albeit in return for a ‘prize’.
Antoin O Lachtnain suggests that this IP-grab is “down to failure to think the issues out rather than any real malice.” He is probably right: website operators very often do not give adequate attention to their terms and conditions and see them as boilerplate, rather than something that should be comprehensively thought-out and bespoke. Recent Ryanair judgmentsdemonstrate the crucial role website terms can play in some disputes.
It has been suggested in the comments on Simon’s post that some other principles apply to YCYC than those set out in the terms, but it is the terms that actually govern the relationship between applicants and YCYC.
The terms and conditions of the Ideas Campaign (which, as has been noted, bears a strong resemblance to YCYC) feature a similarly strong (though confusingly drafted) licence in favour of the operators. However, it does not include the ability to obtain ownership.
Endnote: It also appears an open question whether the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 and 2000 might apply to YCYC and what impact they might have on the IP clauses if a dispute were to arise.
6 thoughts on “Your Country, Your Call”
Consumer contract? I doubt it. This has few characteristics of a consumer contract. The smaller party is the seller or supplier, not the bigger, stronger party. And the fact that this is a competition with a big prize (three times average industrial wage) gives the whole thing a very commercial hue. But I suppose you could argue.
You could be right, though I’m not so sure. The size of the prize should not be determinative.
For the purposes of the Regulations, a consumer is “a natural person who is acting for purposes which are outside his business”, so certainly some people making proposals to YCYC might be doing so “inside” their business. However, many will not.
For example: if an individual wins a competition by composing a catchy slogan, should they be considered marketing executives rather than consumers? In the YCYC context, if a sales assistant makes a proposal about something completely unrelated to sales, should they be deemed not a consumer? It is just a competition after all, not a process whereby the winners participate in forming a business.
The Regulations apply to “any term in a contract concluded between a seller of goods or supplier of services and a consumer which has not been individually negotiated”. There are excluded categories of contract, but they are not relevant to YCYC.
The questions that arise are: (1) whether someone making a proposal to YCYC is a consumer; and (2) whether YCYC is a supplier of services.
I left it as an open question as I didn’t have time to research the point. The Regulations implement the Unfair Contract Terms Directive and while there is very little caselaw in Ireland on this issue (the most well known being the Law Society’s challenge to certain building contract terms) guidance could be found elsewhere in the EU. There was a database of unfair terms (CLAB) but I can’t find it anymore.
So who is the supplier of the service or seller of the good? To me, it looks like the competition entrant is the supplier/seller.
Particularly, since Browsewrap contracts are now enforceable!
However, I’d be pretty surprised if the Unfair Contract Regs Applied here.
First, it’s very hard to see how YCYC is a supplier of services. I’d have to read the contract in depth but from a quick glance it seems to involve an assignment of IP rights from the user to the organisation in exchange for consideration in the form of cash, i.e. the prize. I would be extraordinarily surprised if a cash payment was characterised by the court as a service. However, if other services were provided e.g. marketing support, this analysis may change.
Second, Reg 4 provides that “A term shall not of itself be considered to be unfair by relation to the definition of the main subject matter of the contract or to the adequacy of the price and remuneration, as against the goods and services supplied, in so far as these terms are in plain, intelligible language.”
Even if the Regs applied to this contract, it’s debatable whether or not they would apply to the IP assignment provisions which, given their subject matter, are drafted relatively clearly. The IP assignment is arguably “the main subject matter of the contract”. That fact alone may bring them outside the scope of the Regulations.
I would suggest YCYC is providing a service, that being the running of a competition. However, if I am correct, where is the consideration in the case of a non-winning entrant?
@Oisin: I accept it is rather pushing the envelope to suggest that the YCYC IP provisions would be unfair under the Regulations!
@Antoin: Insofar as it can be ascertained from the vague website, YCYC appears to be a “consumer” type competition rather than a business contest. YCYC is not a Dragons’ Den scenario: it appears unlikely that the winners will have any involvement with whatever organisation develops the winning ideas.
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