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01/10/2022. 20:24:23

LegalToday

Por y para profesionales del Derecho

Social media and copyright: Who owns the content?

Asociada Senior del Departamento de Propiedad Industrial e Intelectual de Baker & McKenzie en Barcelona

The use of social media raises considerable doubts and uncertainties with respect to the regulations applicable to these digital environments. From the point of view of intellectual property rights, the main issue at stake is always: Who owns the content on social media sites?

Dibujo de personas e ideas

There is a general-albeit mistaken-belief that everything that is on social media sites and, by extension, on the Internet, may be used freely (to the extent that everything that is found there is usually freely accessible and easily available, and also free of charge). Many believe that all the content posted on social media ‘belongs to everyone and is free for all'.

However, this is not the case. When content is posted on social media sites (either on a person's user profile or on the page related to a product brand or a company), it is simply being published. But this does not mean that the rights of social media users are automatically assigned to others to allow anyone to use the content as they see fit.

The confusion regarding this situation may be influenced, or even caused, by the fact that social media sites include a ‘limitation of intellectual property rights' in their terms of use, which are agreed to by users upon registration. But these licences on intellectual property rights are limited in scope. They are usually non-exclusive and authorise the use of the content posted by users on social media sites by social media or by other users. Nevertheless, a key point is that the content is normally authorised to be used only within the social media site or in connection with it, or with the services provided by it. Therefore, no other use or purpose is permitted. The terms of the licences applied by each of the social media sites must be considered in order to confirm the authorised uses in each case and at any given time. It must be taken into account that, in general terms, social media sites reserve the right to amend their terms of use at any time.

‘A much too common practice'

In the light of the above, as it is to be expected, there are constant infringements of intellectual property rights. The content posted by users on social media sites (mainly videos, photos, songs, illustrations, etc.) are used by third parties on a daily basis, both by individuals and companies, whether or not they are users of social media, without being previously authorised by the owner of the rights. This practice constitutes a violation of the intellectual property rights inherent to such content.

As a matter of example, the use of third party photographs was precisely the subject of a lawsuit in the United States which resulted in a judgment of liability for copyright violation. It was the dispute between Haitian photographer Daniel Morel and press agencies Agence France Presse and Getty Images.

The facts were as follows: Daniel Morel, who was in Haiti at the time of the earthquake in 2010, took several photographs there and posted them on his TwitPic account, the Twitter application for users to share images. Through a third user, the referred press agencies had access to the images and sold them to media companies around the world, without the authorisation of the photographer and without mentioning him as the author of the same.

The litigation lasted 3 years, with the subsequent costs, and the federal jury presided over by Judge Alison Nathan finally ordered the agencies to pay $1,200,000 as compensation for violation of intellectual property rights. Copyright was deemed to have been infringed precisely on the grounds that, contrary to the argument posed by the agency (that everything that is published on Twitter may be used without any authorisation being required), Twitter's licences do not include the right to use users' content for commercial purposes.

Similar situations have also taken place in Spain. For example, there have been several cases in which companies in the fashion industry have used photographs that they had found on Instagram without the authorisation of their respective authors and printed them on some of the clothes in their collections. These matters, although they have not reached the court system, have been the object of claims submitted by the authors involved and resulted in settlement agreements, including, in some cases, a public apology by the companies for their unauthorised use of photographs. The repercussion of these disputes, both on social media sites and on the general media, may have a serious impact on the image and reputation of the companies involved.

Consequently, even though it may seem obvious to say that an authorisation must be requested to use third party content, reality shows that infringements are very often committed.

‘Is a tweet a work?'

So far reference has been made to the content posted by users and shared on social media, such as photographs, videos, illustrations, texts, etc. which in principle are deemed to be protected by intellectual property rights.

However, what about messages created and posted by users on social media sites? We are talking about, for example, messages posted in Facebook or tweets, in the case of Twitter. These messages are usually very short and, although they are contents created by users, it is not so clear whether they must be considered to be worthy of protection.

The debate on this question recently started on the basis of the following issue: only a few days ago, a prestigious publishing company decided to withdraw from the market its book entitled "Les Perles des Tweets et du net". The book consisted in a compilation of tweets which, apparently, the company was about to publish without having obtained the authorisation of the authors. Besides, the tweets were reportedly going to be published with no indication of the authors' names, which would not only have affected their economic rights but also their moral rights. In view of the irate reactions apparently triggered by the announcement of the publication of this book, the company has seen no other option but to publicly announce the withdrawal of the book from the market. Furthermore, the publisher announced such withdrawal through its Twitter account.

A debate on the matter is assured: Can we really consider tweets to be works subject to copyright protection? That is, do tweets meet the necessary requirements to that effect?

Let us remember that tweets are short messages that cannot exceed 140 characters. This obviously greatly limits the authors' freedom to create them and questions whether tweets can meet the legal requirements to be protected by copyright, namely, a level of creativity and originality. Given the exceedingly short length of tweets, the threshold of the level of creativity and originality required in these cases would be extremely low. Consequently, it is not clear whether a tweet would ultimately deserve the same protection as other literary works.

Despite the above, and even though this is still an arguable issue, in order to avoid a potential judgment against it, the publisher decided to withdraw its compilation of tweets from the market, given the lack of case law on the matter to date.

By way of conclusion, one thing is clear: when we operate through the social media we must be aware that intellectual property law applies to any contents that meet the necessary requirements to be considered works capable of being protected. In other words, the same law that we apply to the analogical world is also applicable to the online world in the context of social media sites. Apparently, the prestigious publisher referred to above temporarily forgot about it.

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