Instagram has courted controversy this week by announcing changes to its terms and conditions. There are clauses in Instagram’s new terms which are likely to cause them difficulty with privacy and advertising regulators but the most controversial new terms are that:

• Instagram will have a full licence to use your photographs, including to sub-licence or transfer use of them; and
• customers of Instagram (that’s advertisers, not you) can pay to have your name or photos (along with other information) displayed in advertising messages, without paying you or even notifying you.

Changes to intellectual property terms on free online services have long been a source of controversy, not least because when services like Instagram are involved many of the users are involved in creative industries. Even if a user is not a creative professional, the service involves the creation of intellectual property. Mess with those users’ rights at your peril.

Of course, blame for these changes is being laid firmly at the door of Facebook who famously paid through the nose to acquire Instagram. While the new terms are not surprising, given the involvement of Facebook, whoever owned Instagram was always likely to attempt such a change in order to monetise the business.

If the online reaction is anything to go by, the changes are a boon for Flickr. The death knell of that service had been sounding for some time but it, and its new app which has launched with serendipitous timing, could see a significant return of dormant users. I have noticed a surge in activity in the past few days as Instagram users have returned to Flickr and began uploading photos for the first time in months while also seeking out contacts from the Instagram universe.

But what do Flickr’s terms say?

With respect to … Content you elect to post to other publicly accessible areas of the Services, you grant Yahoo! the royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable right and licence to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed.

The difference between this and what Instagram’s terms will say is not clear to me, apart from the fact that Instagram are more explicit in what they plan to do with your photos. Neither is it clear if a Flickr account which is set to private constitutes a “publicly accessible area of the Services”.

Strangely, this does not appear to be the situation in the US, where their local version of the Yahoo!/Flickr terms are limited and provide a licence “solely for the purpose for which such content was submitted or made available.” This limitation does not appear in the terms applicable in Ireland. So is there any difference between Instagram and Flickr?