Licensing sounds from the BBC – contract terms

The BBC has recently announced that it is making available 16,000 sound effects from their archive. The terms on which they make these sounds available, for non-commercial use, can be found here.

The sound effects are organised by category, so if you need to create an atmosphere with the noise of Radar, Rickshaws or Sanding Machines, there is a sound effect (or several) for you. Perhaps you might want to liven up your blog? Sadly, there seem to be none under the heading of a lawyer’s office – what a missed opportunity!

IP Draughts was intrigued by the licensing terms, which can be found at the above link. They are written in a chatty, non-lawyerly style, as if a journalist had written them – but one who has been careful to ensure that the main legal points are covered.

Here is an example – clause 10 of the terms. IP Draughts has added legal commentary in purple next to some of them.

10. Mishaps [A gentle-sounding euphemism for wrongdoing or liability]

We take great care to make our content the best it can be. So [casual use of “so” suggests a justification based on the previous sentence – but is there one?] if something does go wrong, we are responsible only:

(a) If our content damages your device or anything on it. Should this happen, you might be able to ask for compensation under consumer protection law. [Safety valve wording to avoid the later disclaimer of liability being held invalid because it goes too far, eg by excluding liability for injury caused by a product, under the Consumer Protection Act 1987.]Compensation isn’t guaranteed, though. Be sure to get legal advice. [not really a contract term – but perhaps trying to mitigate risk of consumer not understanding this paragraph.]

(b) For certain unlikely events. If our negligence causes death or injury, for example. [Neat way of including a safety valve for liability that cannot be excluded under section 2 of the Unfair Contract Terms Act 1977. But what about fraud? Not clear what other “unlikely events” are covered, and I’m not convinced this is a good choice of words.]

(c) If you’re an individual “consumer” and it would be unfair for us to not be held responsible. [Again, safety valve wording for consumer liability that cannot be excluded by contract terms] Otherwise, we’re not liable for anything that happens if:

• You rely on advice, data, commentary, opinions or any other content
• There are errors, omissions, interruptions, delays, bugs or viruses
• We turn off or remove content, services, external links or creations (we’d normally only do this for legal reasons) [the weasel word “normally” is designed to reassure, but doesn’t really have a place on contract terms]
• The thing that happens [clunky phrase – is “event” or similar considered beyond consumer comprehension?] couldn’t reasonably have been foreseen
• The thing that happens [ditto]wouldn’t usually result from the mishap [or, in legal terms, it is not direct loss under the first limb of Hadley v Baxendale] or
• You and we hadn’t agreed that this thing would probably happen in the event of a mishap [or, in legal terms, it is not indirect loss under the second limb of Hadley v Baxendale]. This applies to sites we link to as well as our content and services.

IP Draughts admires the linguistic creativity of the above wording, which attempts to be both friendly and to think into the mind of the typical reader.

He also admires the thought that has gone into trying to fit within the constraints of consumer law, e.g. by focussing on direct and indirect losses but trying to avoid legal jargon when doing so.

In his view, the drafter hasn’t got everything right (e.g. the phrase “certain unlikely events”), and this style wouldn’t be appropriate for business-to-business contracts.

But it is one of the best attempts he has seen.