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Forfeiting copyright via Facebook

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A recent Nielsen study found that Australian internet users spend more of their time online visiting social-networking sites and blogs than users in nine other countries, including the United States and Britain (State of the Media: The Social Media Report). And like any good guest, when we visit, we interact and share: creating profiles, ''liking'', ''tweeting'', ''poking'', commenting on, posting and uploading content at an ever-increasing rate.

Several high-publicity court cases have resulted in an increased awareness among the general public of the risks of infringing copyright by downloading material (such as music and films) from the internet. However, the intellectual property issues associated with uploading content onto social-media sites such as Facebook are often ignored or misunderstood. These issues give rise to risks not just for the internet user, but also for their employer, where internet use occurs during their employment.

What is copyright?

Put simply, copyright is a bundle of rights that the law recognises in certain subject matter. Written works (such as articles, reports and books), photographs, films, sound recordings, sculptures and paintings are all examples of subject matter in which copyright can subsist. Once the subject matter is created, copyright applies automatically and without the need for the owner to take any steps to claim ownership.

If copyright subsists in particular subject matter, the copyright owner has the exclusive right to prevent others from undertaking certain activities, including copying, publishing and adapting the subject matter and allowing others to do so. Allowing others to do so is known as ''licensing''. A ''licence'' simply means a ''permission''.

Often, the person who created the subject matter will own the copyright, subject to certain exceptions. These include that:

However, a contract can affect or alter who owns copyright in any particular case.

By owning copyright, a person can control who can copy, publish or adapt subject matter and on what terms. For example, copyright owners have the ability to charge fees for licences they give to others to use the subject matter and can limit the time period, geographical location or purpose for which the subject matter can be used.

Uploading (or ''posting'') content to social-media websites

Social-media websites typically allow users to upload user-generated content, including blogs (i.e. personal journal entries made online), other articles, photographs, and film and sound recordings. In general, these forms of online content are subject matter in which copyright exists, and the same principles apply to copyright in online content as apply to copyright in other subject matter.

Many internet users don't understand that, in posting content to social-media websites, they are providing a very broad licence to others to use their subject matter and it might not be possible to ever retract that licence.

For example, the terms of use for Facebook currently provide that users own the copyright in all content they post on Facebook. Subject to privacy and application settings, the user grants a broad, transferable, free, worldwide licence to Facebook to use, and to allow others to use, any content that they post on Facebook. This licence applies until the user deletes the content or deletes the user's account. However, if a Facebook user publishes content using the ''public'' setting, Facebook's terms of use provide that the user is allowing ''everyone, including people off of [sic] Facebook, to access and use that information, and to associate it with you (i.e. your name and profile picture)''. If public content has been shared with others, and they have not deleted it, the licence continues in effect, even if this is against the user's wishes.

Many users of Facebook have not read the terms of the licence they provide when uploading their content and, if they had read the licence, would not understand the potential implications. These implications include:

Freelance photographer Daniel Morel experienced firsthand some of the potential pitfalls of a copyright owner using social media. Morel uploaded photographs he had taken of the aftermath of the 2010 Haiti earthquake to a popular third-party application of Twitter called Twitpic. His photographs were quickly copied and redistributed by media outlets and appeared in newspapers and on television. Morel sought to correct the attribution of the photographs and licence them. As the Twitter licence terms for third-party users were much narrower than those on Facebook, a court found in pre-trial proceedings that Morel had not authorised the use of his photographs by the media outlets.

While Morel may have had an early win towards establishing that the media outlets could not lawfully use his photographs free of charge and without attribution, it is worth noting that:

Managing and enforcing copyright in social media

In Morel's case, there was no question that he owned copyright in the photographs. However, many users post content that is owned by others. For example, professional artworks, school and other professional photographs, and material created by an employee for work purposes can all find its way into social media. If a user posts content that they do not own and such use was not authorised by the copyright owner, the copyright owner may take legal action for copyright infringement against the user who posted the content and any other users who have copied and used the content. Even if the infringement occurred innocently or the use was for non-commercial purposes, a successful claim of copyright infringement can be brought.

Copyright owners can report an infringement of their copyright on social-networking websites such as Facebook directly to the website's operators. Facebook will remove the content if it is satisfied that the offending content infringes the complainant's rights. However, copyright owners can experience difficulty in identifying copyright infringements online and, as Morel is no doubt aware, the potential for rapid copying and distribution of infringing material online can irreversibly damage the commercial value of the copyright. Copyright owners and those on the opposite side of an infringement action would all agree that an ounce of infringement preventative is worth a pound of infringement cure. The following are just some ways of managing copyright in social media:

At the end of the day, Commonwealth agencies should be certain that those employees who are responsible for maintaining pages on their social-networking sites understand the basic principles of copyright and the risk of potential copyright infringements arising from posting content that is owned by a third party.

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