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.
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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:
- An employer will generally own copyright in subject matter produced by an employee in the course of their employment.
- Copyright in certain subject matter produced on commission for private purposes (such as photographs) may be owned by the commissioner rather than the photographer. 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:
- Facebook users must choose their settings carefully when posting content because there is no ability to vary the terms of the licence, only to vary their settings.
- If users forget to vary their settings and post content as ''public'', there is risk that the content will be copied by others. Even if the content is deleted from the user's Facebook page, the licence which the user gave will not be able to be retracted.
- The licence to content that a user gives to other Facebook users and third parties is not limited by purpose. Therefore, anyone is able to use ''public''-posted Facebook pictures for commercial purposes and for purposes outside Facebook. This would include use which the user may find offensive or which adversely affects their interests. For example, regulatory authorities may use a Facebook photograph to identify or investigate a suspect, or newspaper or television reporters may use a Facebook photograph to report a crime, death or scandal. The user has consented to all such uses just by posting the photograph. 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:
- Posting the photographs online in the first place may have reduced the commercial value of Morel's copyright, as all Twitter users could look at the photographs free of charge. Media outlets may be reluctant to pay to use photographs when the copyright in those photographs cannot be sold or licensed on an exclusive basis and when the photographs are already freely available to the general public.
- The photographs had become so widely distributed outside Twitter that it may have been impractical for him to enforce his exclusive rights as a copyright owner (for example, ensuring that all unauthorised copies were deleted). 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:
- All employers whose business involves creating commercially valuable intellectual property (such as research or creative works) should be aware of the risks of employees (innocently or otherwise) uploading employer-owned content to social-media websites. There is a higher risk if the employees are able to access such websites during work hours and from their work computers. Even if such employers decide not to restrict employees' access to social-media websites, they should consider raising awareness of intellectual property infringement in their workforce through training or intellectual property policies.
- Where practicable, copyright owners may use technological protection measures to prevent content from being copied or imbed metadata in content such as photographs to ensure that the copyright owner receives, at a minimum, an attribution if the content is copied. 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.
- Sharon Rowe is a special counsel and Robert Dearn is a senior associate with Minter Ellison Lawyers.
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