Today’s ever-evolving platforms allowing the dissemination of information raise questions regarding copyright issues.
Inevitably, these new copyright issues do not fit comfortably into the existing legal framework, and the popularity of social networking sites including Facebook and Twitter introduce new copyright conundrums on a regular basis.
As users of social networking sites, most of us are aware that copyright exists. We may never have given it a second thought, especially when it comes to our own tweets or postings.
Some of us may have been aware enough to check out the terms and conditions in relation to our material posted on these sites, and have been secure in the knowledge that both Facebook and Twitter say we retain the rights to any content we submit on their sites.
Facebook’s Statement of Rights and Responsibilities (SORR) says ‘You own all of the content and information you post on Facebook’ and Twitter’s Terms of Service (TOS) states ‘You retain your rights to any Content you submit, post or display on or through the Services’.
You Own Copyright to Your Content, But . . .
However, delve a little deeper and two things may be surprise you.
Firstly, you may own your own content, but by agreeing to the terms and conditions of these sites this may prove to be fairly meaningless.
Secondly, the whole ownership issue may be a red herring in terms of copyright, as this supposes that the material you post is copyrightable in the first place (more on this later).
Facebook’s SORR goes on to say that ‘you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide licence to use any IP content that you post on or in connection with Facebook.
Similarly, Twitter’s TOS states ‘you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).’
Social Networks Get Automatic License to Your Content, Forever
Essentially, what this means is you have granted these sites a free license – not just for them, but for them to allow others – to use your material in any way.
In effect, you may own your content, but once you have posted it you will have virtually no control over what happens to it.
In particular, if your content has been shared with others it will still be out there, even if you delete your account.
Twitter stresses that, on the one hand, ‘you retain your rights’, but on the other hand, has an ever-evolving set of rules on how its partners can syndicate, broadcast, distribute or publish your material with no compensation payable to you.
Generally, while this may not be such an issue to the majority of users, it is not the point.
It is also clear that it may be problematical for some users who have unwittingly entered into a licensing agreement that removes their choice as to how their material is managed and distributed.
Social Networks Can Limit Your Future Ability to Choose How Your Material is Managed and Distributed
Many people make the basic assumption that anything they post online is owned by them, and is, therefore, protected by copyright. It would seem to be against the spirit of copyright that such behemoths can control the rights of its users, by seemingly acquiring them through the back-door.
However, copyright in some of these instances is not necessarily a question about ownership, but a question of whether copyright exists at all.
The assumption that copyright exists in every post and every tweet probably stems from the Terms included in the social networking sites, which state categorically ‘you own your own content’.
Thus, logical thinking supposes if both Facebook and Twitter have expressed that if you own your own content, and content is copyrightable, then the rights must exist in the first place.
And herein lays a problem. You may own the rights, but whether they are rights that exist in copyright is a moot point.
No Copyright Protection for Your Tweets
Although the law is clear that original, creative works are capable of being copyrightable, not every original, creative work is copyrightable because there has to be a certain degree of skill and knowledge that has gone into the creation of the work.
For this reason, a Tweet is unlikely to attract copyright protection.
In part, this may be because of the size of the post.
The 140-character limit imposed by Twitter makes it virtually impossible to reach the required creativity level for copyright protection, and it is already established that copyright does not protect names, titles, slogans or short phrases.
Furthermore, if you have a look at some random tweets about the recently broadcast program ‘Drugs Live’ on the UK’s Channel 4 you can see they range from the boring ‘If you don’t agree with drugs, don’t take them’; to the useless ‘I need some.
Do they deliver?’ to the irreverently witty ‘If Jon Snow doesn’t hoof a bean and dance around to Mr Scruff in his pants, I’m switching over to Taggart.’
Essentially, what the Twitosphere offers is a way of communicating expressions of knowledge and fact – and facts in themselves are not copyrightable.
As one Australian judge put it, ‘If you are the first person to announce a man had fallen off a bus you cannot use the law of copyright to stop other people from announcing it.’
Your Facebook Posts Are Another Story, Perhaps
Similarly, although Facebook posts are not as limited in size as Tweets and, therefore, have more scope for the required degree of creativity to be eligible for copyright protection, in the main Facebook, too, is used for the dissemination of facts.
This is not to say that posts on either Facebook or Twitter are not capable of copyright – and clearly there will be some that are, but there is a lot that would be considered to be scènes à faire.
Put another way, it means that something cannot be copyright-protected because the elements used to describe a ‘scene’ are standard, indispensable or naturally occurring, and that scene cannot be described in any other way.
Thus, if 100 people witnessed the man falling off the bus, they are bound to describe it in the same, or similar, way.
Compare ‘A man fell off a bus today sustaining fatal injuries’ with ‘A geezer fell off the bus today….loads o’ claret everywhere… Poor geezer’s brown bread’.
Both of these are talking about the same fact, but each is expressed in a different way. Thus, you cannot copyright the fact, but potentially you may be able to protect your expression of the fact.
If It’s Really Important to You, Don’t Post it on a Social Network
The point is, if there is something you feel you will need to control of the rights to, then the safest thing to do is not to post it on social networking sites, or you may lose control of it forever.
But before you start hurriedly deleting Facebook and Twitter accounts because you feel aggrieved they are taking your rights, consider that your postings may not be copyrightable in the first place – and isn’t this how it should be?
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About the Author: Amanda Duffy has a degree in law from the University of Westminster, London. She has had a successful career in music copyright and publishing at the Mechanical Copyright Protection Society, the BBC and FremantleMedia. She is now a freelance writer.