Every post, comment, or tweet made on Social Media has the opportunity of reaching millions of users. In 2015, Facebook was estimated to have around 1.5 billion users; Twitter, around 316 Million active users; and YouTube, more than one billion users. Theoretically, content on these platforms can reach millions of users. However, only a very small percentage of posts actually go viral on Social Media. One article estimates that rate of virality is 1.92 percent on Facebook.
Intellectual Property and Distribution
Today is Diwali, and one of my friends informed me that she just picked a Diwali Greeting image and posted it on her Facebook page. That was followed by, she claims, several likes. This is a common syndrome among users of Social Media. Picking content and distributing it through one’s account on Facebook, Twitter or Linkedin, and more often than not, claiming to be the originator of the content is a common phenomenon. This is a classical case of IP infringement, which goes unnoticed or unenforced one out of one thousand or rather, ten thousand times.
An act of picking content and distributing or disseminating it may not always amount to IP infringement though. The answer to the question of whether an act of distribution amounts to infringement or not depends on where the content originated, and the terms associated with the content. Would sharing content on Facebook, Re-tweeting on Twitter, or sharing YouTube videos amount to infringement? The answer to the question lies in terms and conditions of Facebook, Twitter, YouTube, etc.
Terms and Conditions
Terms and Conditions, sometimes referred to as Terms of Use, Terms of Service, etc. define a user’s relationship with a Social Media platform. Every platform, including the likes of Facebook, Twitter, and YouTube, has a set of terms and conditions, which lay down the covenants on which the access to the platform is provided. A person’s use of the platform, and content on the platform, is governed by the terms and conditions. Most of these terms and conditions contain covenants with respect to ownership, distribution, dissemination and take down of IP. Provisions of the terms and conditions of Facebook, Twitter and YouTube are discussed hereunder to understand user rights with respect to distribution and dissemination of content.
Terms and Conditions for use of Facebook are provided in the statement of rights and responsibilities on Facebook. By signing up with Facebook every user agrees to be bound by the said statement.
Statement of Rights and Responsibilities
“2. Sharing Your Content and Information
You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:
- for content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings:
you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
- When you use an application, the application may ask for your permission to access your content and information as well as content and information that others have shared with you. We require applications to respect your privacy, and your agreement with that application will control how the application can use, store, and transfer that content and information. (To learn more about Platform, including how you can control what information other people may share with applications, read our Data Policy and Platform Page.)
- When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).”
Facebook’s Statement of Rights and Responsibilities clearly states that a person uploading content to Facebook owns that content. However, the Statement provides that by uploading content on Facebook, a person is giving two things with respect to the Intellectual Property:
- License to Facebook to use the content “in, or in connection with” Facebook. This simply means that Facebook can use a person’s content within Facebook and also, outside the platform as long as the use is related to Facebook. Note that the license is transferrable, sub-licensable and royalty free. This means that Facebook can use IP for any purpose, directly or through third parties, and need not pay anything to the IP owner.
The permission granted by a person with respect to the content includes authorization for use even outside Facebook. Only requirement is attribution. Also, once access to content by Apps is given, similar permissions are available to the Apps as well.
To summarize, Facebook and third parties may use Intellectual Property uploaded on Facebook without seeking the permission of the IP owner. The said permission includes unlimited rights of distribution and dissemination. The permission to distribute and disseminate does not come to an end once license is withdrawn through deletion of content or account. The right to use includes the right to modify and adapt as well.
Twitter
Terms of Service
“5. Your Rights
You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, 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).
Tip: This license is, you authorizing us to make your Tweets on the Twitter Services available to the rest of the world and to let others do the same.
You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.
Tip: Twitter has an evolving set of rules for how ecosystem partners can interact with your Content on the Twitter Services. These rules exist to enable an open ecosystem with your rights in mind. But what’s yours is yours – you own your Content (and your photos are part of that Content).
Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.
…
You are responsible for your use of the Services, for any Content you provide, and for any consequences thereof, including the use of your Content by other users and our third party partners. You understand that your Content may be syndicated, broadcast, distributed, or published by our partners and if you do not have the right to submit Content for such use, it may subject you to liability. Twitter will not be responsible or liable for any use of your Content by Twitter in accordance with these Terms. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit.”
“8.
…
You have to use the Twitter API if you want to reproduce, modify, create derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the Twitter Services or Content on the Twitter Services.
Tip: We encourage and permit broad re-use of Content on the Twitter Services. The Twitter API exists to enable this. …”
The twitter terms of service state very clearly that all IP on the content uploaded to Twitter is owned by the user uploading it. Under the terms such IP is licensed to twitter and other third parties for distribution, publication and dissemination. By using the Twitter Api, the content on twitter can be distributed, syndicated, and disseminated without limitations. The IP owner will not be paid for such distribution, commercial or not. The license also includes rights of adaptation and modification.
Twitter explicitly takes permission to commercialize the content by syndication, broadcasting, etc. Also, liability with respect to any IP issues arising out of the content is clearly placed on the content uploader. Permissions on Twitter are most aggressive among the three platforms discussed in this note.
YouTube
Terms of Service
- Content
7.1 As a YouTube account holder you may submit Content. You understand that whether or not Content is published, YouTube does not guarantee any confidentiality with respect to Content.
7.2 You retain all of your ownership rights in your Content, but you are required to grant limited license rights to YouTube and other users of the Service. These are described in paragraph 8 of these Terms (Rights you licence).
…
- Rights you licence
8.1 When you upload or post Content to YouTube, you grant:
- to YouTube, a worldwide, non-exclusive, royalty-free, transferable licence (with right to sub-licence) to use, reproduce, distribute, prepare derivative works of, display, and perform that Content in connection with the provision of the Service and otherwise in connection with the provision of the Service and YouTube’s business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels;
- to each user of the Service, a worldwide, non-exclusive, royalty-free licence to access your Content through the Service, and to use, reproduce, distribute, prepare derivative works of, display and perform such Content to the extent permitted by the functionality of the Service and under these Terms.
8.2 The above licenses granted by you in Content terminate when you remove or delete your Content from the Website. The above licenses granted by you in textual comments you submit as Content are perpetual and irrevocable, but are otherwise without prejudice to your ownerships rights, which are retained by you as set out in paragraph 7.2 above. “
Like Facebook and Twitter, YouTube’s terms also state that the person, who uploads content will continue to own IP in the content. The content is however licensed for not only use on YouTube’s service, but also for making derivative works, distribution and re-distribution as part of the service or for YouTube’s business. Simply put, YouTube can use the content for any business purpose. Another license is also provided in the terms of service for third parties, who are YouTube users. The license allows third parties to access the content, to make derivative works, and to distribute the content. The content may be distributed and disseminated using the services of YouTube or any other functionality provided by it. This includes Apps, sharing tools, and other functionalities.
To summarize, Social Media platforms like Facebook, Twitter and YouTube allow users to own IP on the content added to the platforms, but take a broad license to use the said content. The license permits the platforms as well as third parties to modify, distribute and re-distribute the content. The distribution can be done on the platforms, or even off the platforms. There is no prohibition on commercial use of the content, and the IP owner is not compensated for any commercial usage.
The next post will cover IP issues in aggregation of content on Social Media, and related business consequences.
Other Posts in this series:
- Social Media and Intellectual Property – Part I: Protection and Ownership
- Social Media and Intellectual Property (IP): Part III – Aggregation of Content
- Social Media and Intellectual Property (IP): Part IV – Taking Down Infringing Content
- Social Media and Intellectual Property (IP): Part V – Publicity Rights and Celebrity Rights
- Social Media and Intellectual Property (Part VI): Select Copyright Cases
- Social Media and IP (Part VII): Trade mark Cases
- Social Media and IP (Part VIII): Select Patent Cases
- Social Media and IP (Part IX): Select Publicity Rights Cases
Contributed by Social Media Law Team of BananaIP
If you have any further questions on the subject, write to [email protected]
BananaIP’s reputed Social Media Law experts will revert at the earliest
