Social Media in Action in Copyright (EU)
Chapter Authors
Stephen Edwards, Partner – sedwards@reedsmith.com
Dr. Alexander R. Klett, Partner – aklett@reedsmith.com
Introduction
We have referred to copyright in several of the earlier chapters: in relation to advertising and marketing, commercial litigation, and in the chapter on trademarks, principally with reference to U.S. law and in particular the Digital Millennium Copyright Act (“DMCA”). We thought it would be helpful to pull those threads together and to add specific copyright elements, as well as a European law perspective, so as to provide an overview on the significance of copyright to social media across the continents. Copyright is, after all, at the heart of social media. This chapter will highlight some important differences between U.S. and other countries’ copyright laws that companies engaging with social media must have in mind.
In dealing with the position under U.S. law in previous chapters, we make the following points:
- In relation to branded pages, we ask rhetorically whether a company can afford not to monitor its branded page for, among other things, copyright infringement, even though the provider of the social media service takes responsibility for responding to takedown notices received pursuant to the DMCA. We explicitly answer that question when discussing user-generated content, where we suggest that companies should have procedures in place if they receive a notice of copyright infringement, not least because (unlike the social media operator) they themselves will not likely have a defence under the DMCA to an infringement claim if they use an infringing work in a commercial context.
- In discussing defamation risks and the immunity offered by the Communications Decency Act (“CDA”) in the United States, we noted that a blog operator (but effectively any company using social media) cannot assert a CDA defence to claims that are rooted in harm to the victim’s intellectual property. In consequence, if the victim asserts, as against the operator, a claim for copyright infringement based on the blogger’s uploading of protected material onto the blog, the operator has no CDA defence, and the claim must be resolved under copyright law and in particular the DMCA.
- At the end of the discussion in chapter 12 [10] of the relationship between social media and trademark protection, we advise that “it is of the utmost importance to have strategies in place in order to best protect your ownership of intellectual property. By aggressively policing your trademarks, service marks, trade names and copyrights, intellectual property owners will be in the best position to prevent a claim that they have waived their ability to enforce their ownership rights, while at the same time discouraging others from any unauthorised use of such marks and works of authorship.”
If we look at these issues from a European perspective, the same concepts hold good, although it is not the DMCA that governs but rather the E-Commerce Directive[1], as applied by national law in the Member States of the European Union and the European Economic Area. As in the United States, as a general matter, the operator of a social media service is given protection against copyright infringement claims if it operates an effective notice and takedown procedure but, as in the United States, this protection available to the operator may not be available to a company that provides a branded marketing page on which users are able to upload infringing content. Some European courts, such as the German Federal Court of Justice, consistently take the view that while in line with the E-Commerce Directive[2] constant proactive monitoring of sites cannot be expected, an operator has an obligation to prevent subsequent evident infringements by the same infringer.[3] Only in exceptional cases, according to this case law, can an operator be sued to obtain injunctive relief as a precautionary measure if infringements of intellectual property rights on the site of the operator are feared.[4] In general, European courts agree that an obligation to monitor and review content will only exist for operators of services such as social media services with respect to significant, evident infringements.[5] Companies should therefore have procedures in place to ensure that any evidently infringing material or infringing material they are made aware of by right holders can be removed as swiftly as possible.
Copyright Infringements on Social Media Services
The question of whether the use of third-party content protected by copyright by a user on a social media site constitutes copyright infringement can be answered in a fairly straightforward way. If there is no consent by the right holder, such use will inevitably constitute an illegal act of making the work available to the public under most modern copyright regimes. Most operators of social media services provide in their terms of use that the user is responsible for making sure that material provided by him on the service does not infringe third-party copyrights. As has been discussed above, the interesting question then becomes whether the operator of the service can be held liable and can be asked to stop the infringement quickly, particularly in situations in which the identity of the infringer (the user) is difficult to establish or the infringer is located in a faraway country.
Conversely, however, one can ask whether content legitimately created by users of social media services enjoys copyright protection itself. If this is indeed the case one may wonder to what extent the operator of the service or other third parties may be allowed to refer to, cite or otherwise make use of such content.
With respect to tweets, which by definition can be no longer than 140 characters, one may doubt whether they will be sufficiently creative and original to enjoy copyright protection. In many cases, tweets will only consist of short regular phrases that may not be regarded as an original work of authorship in the U.S. sense,[6] an original work in the UK sense[7], or a personal intellectual creation as required under German copyright law.[8] Consequently, in many cases, none of the three regimes will provide copyright protection to tweets.
To the extent Twitter states in its terms of use:
You retain your rights to any Content you submit, post or display on or through the Services.
this should actually be qualified by indicating that in most cases, tweets will be in the public domain for lack of originality or creativeness. It is not impossible, however, to create short poems or other brief literary works with no more than 140 characters. If originality and creativity can be established, the situation would be different. The analysis would also be different for longer original works broken down into sequences of tweets and made available on Twitter one by one—such as a short story published on Twitter in small bits of no more than 140 characters each, provided the single tweet enjoys protection on its own.
If a tweet or parts of a tweet can be found to be protected by copyright, the use of the respective content by third parties can constitute copyright infringement if fair use (United States), fair dealing (UK), or a similar exception under the respective applicable domestic copyright regime cannot be established. There is no rule, either, under U.S. or European copyright regimes requiring that in order to infringe a literary work, passages of a certain length need to be copied, provided the sequence used enjoys copyright protection as such.
As a consequence, so‑called retweeting, (i.e., repeating somebody else's tweet under one's own user name) may constitute copyright infringement as well, provided the earlier tweet is sufficiently original and creative to be protected. Citation exceptions provided[9] may not help in this context as mere repeating of an entire text without incorporating it into one’s own original work does not constitute citation.
Facebook, MySpace, et al.
The limitations existing with Twitter with regard to the number of characters do not exist on other social media services such as Facebook and MySpace, among others. The further possibility to upload photographs and/or audiovisual content onto such services leaves no doubt as to the possibility of copyright infringement if third parties copy or otherwise make relevant use without permission of materials taken from somebody’s page on Facebook or a similar site.
Terms of Use and Applicable Law for Copyright Law Purposes
Most social media services have terms of use providing for comprehensive non-exclusive copyright licences granted by users to the operator. Typically, such terms of use also provide for U.S. law in the state in which the service is based. Twitter, for example, provides the following in its terms of use:
These terms and any action related thereto will be governed by the laws of the State of California without regard to or application of its conflict of law provisions or your state or country of residence. All claims, legal proceedings, or litigation arising in connection with the service will be brought solely in San Francisco County, California, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.
While such terms, if they have been validly made the object of the agreement between the user and the operator of the social media service, may apply for general purposes of international law of contracts, the question needs to be asked whether for purposes of copyright law such a choice of law and venue clause will make all foreign copyright regimes inapplicable.
From a European perspective the answer is clearly: no. According to European case law (and the view of leading European scholars), the posting to social media services of works by users in Europe is governed by the copyright laws of the particular European country in which the user resides, regardless of the contractual regime agreed to in the terms of use. This may be surprising, but it needs to be taken into account, particularly in connection with copyright regimes providing for increased protection for copyright owners, such as under German copyright law.
Moral rights, compulsory remuneration rights, legal limitations on the scope of copyright licences and the prohibition of assignments of copyright provided in the German Copyright Act, for example, will all continue to apply for the benefit of a German right holder or with respect to uses in Germany, even if the operator of the social media service provides for California law. Companies are well advised, therefore, not to be misled into believing that simple choice-of-law clauses, even if they have been validly agreed, will enable them to avoid the much stricter and much more pro-author provisions in certain European copyright regimes, compared with what the U.S. Copyright Act provides.
Music Licensing Issues
In dealing with the copyright issues faced by U.S. companies engaging with social media in the U.S. market, we did not mention an issue that looms large for European and multi-national companies operating within Europe. If a company wishes to enliven its web-presence by using music, the rights-clearance arrangements that will be needed are very different if the company is operating in Europe rather than in the United States. A U.S. company can usually clear rights for the U.S. market by means of obtaining two or, at most, three licences, from the music rights societies and from the record company concerned. To reach the whole of the EU market, a multiplicity of licences will be needed, in many cases covering only a single country at a time. Only for a very small number of works is it possible to obtain European-wide clearance by means of two or three licences; choose the wrong work and you could be looking at having to obtain 30 or more licences.
Bottom Line—What You Need to Do
Police your own copyrights and be mindful of copyright protection that may exist for content provided by others. Be aware of the fact that the international nature of global social media services requires that you not only rely on one domestic or one contractually agreed regime, but that you also keep an eye on foreign laws involved with users based abroad.
When clearing rights for using content yourself, be aware of the international scope of the intended use as well, and make sure that you truly obtain sufficient geographic rights for the intended use.
If you operate a site enabling users to upload content, put in place a procedure allowing you to remove, as swiftly as possible, evidently infringing material or material of which you have been told that it is infringing.
[1] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market.
[2] Art. 15 (1) of the Directive: Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.
[3] Bundesgerichtshof[German Federal Court of Justice], GRUR 2004, p. 860 – Internet auction I.
[4] Bundesgerichtshof[German Federal Court of Justice], GRUR 2007, p. 708 – Internet auction II.
[5] See, for example, Bundesgerichtshof[German Federal Court of Justice], GRUR 1999, p. 418.
[6] 17 U.S.C. § 102 (a).
[7] S. 1 (1) UK Copyright Designs and Patents Act.
[8] § 2 (2) German Copyright Act.
[9] Such as in § 51 German Copyright Act.
