Tons of content is added to Social Media on a daily basis. It is estimated that more than 30 billion pieces of content are shared on Facebook each month; more than three hundred hours of video is uploaded to YouTube every minute; and more than six thousand tweets are added to Twitter every second. This can at the least be described as explosion of content creation and distribution. From the storm of content arises the need for aggregating, indexing and searching services.
Aggregation of Content
Aggregation of content is in general permitted if the aggregation and indexing is done for purposes of enabling content research, identification and search. There is a well-defined safe harbour under the law for search engines, which act merely as intermediaries. Under the safe harbour, a search engine will not be held liable for IP infringement if it reproduces, compiles, indexes and stores data for merely purposes of searching. However, file sharing networks have not been given the same liberty, where nature of content shared (infringing or not), and knowledge/actions of the network play an important role in determining liability.
While aggregation of content acquired through legal means was generally considered permissible, the law on the subject is far from uniform. Broadly, aggregation of news involves two issues among others: copyright infringement and hot news misappropriation.
At a general level, Courts in the United States permit news aggregation of titles with very short excerpts. They reason that titles are not copyrightable, and that use of short excerpts extracted and aggregated in a defined manner is transformative, making such use fair. Hot news doctrine may also not be attracted as aggregators normally cover only headlines and lead a reader to the original source for the full news. Having said that, a decision on news aggregation may go the other way based on specific facts of a case.
The latitude for news aggregators in Europe is much less and constricted. In Spain, news aggregators are required to pay news agencies to aggregate their news. Promulgation of this law led to the withdrawal of Google News service from Spain. Courts in UK have held that even short titles are copyrightable if they are highly creative, and that copying short excerpts can amount to copyright infringement and may not be considered as fair dealing.
In a series of cases, the European Court of Justice has held that hyper linking and browsing publicly available content does not amount to copyright infringement. The question of whether publicly available, infringing content can be aggregated and hyperlinked is still unresolved, and most scholars are of the opinion that ECJ will hold such aggregation as infringing. Aggregation business without permission therefore does not have a bright future in Europe.
The law in India is unsettled on the matter, and aggregation in India is still a risky proposition.
Terms of Aggregation
All three Social Media platforms, Facebook, Twitter and YouTube permit aggregation of one kind or the other. Facebook allows users to share and distribute content in and outside Facebook. Publicly available data of Facebook users may be collected and used for both commercial and non-commercial purposes. However, automatic data collection is not allowed without Facebook’s express permission. Such permission for uses other than searching is normally accompanied with specific terms and conditions.
Twitter requires the user to give a very broad license with respect to content distribution and content on twitter can therefore be aggregated. Content on twitter can be accessed through the Twitter API, and the API is governed by specific terms and conditions. Other forms of automatic collection are not allowed without express permission. Also, all automatic collections of content are governed by Twitter’s automation rules.
YouTube also permits aggregation of videos by framing or embedding, but does not permit download of the content and its aggregation. Also, there is a specific prohibition against advertising based only on the framed content from YouTube. In other words, advertising on an aggregated source is permitted if the source has something more than merely YouTube videos. The standard aggregation permitted is very limited, and any modification, adaptation, advertising, monetization, etc. will require express permission of YouTube.
IP and Business of Aggregation
With the exponential growth of content on social media, aggregation is not only necessary, but also a viable business option. Most Social Media platforms permit collection, compilation, organization and distribution of content for both commercial and non-commercial purposes. While some require express agreements and probably some consideration to automate the process, others allow aggregation and use for free. Though aggregation is permitted by the terms and conditions and also, to a certain extent under the law, every content aggregator must take appropriate steps to safeguard its interests.
Some best practices followed by successful content aggregators include:
- Analysis of sources of content for IP permissions and risks;
- Protection of models adopted by the aggregator through appropriate IP filings, markings and management;
- Well defined Terms and Conditions and Privacy Policies;
- Appropriate Take Down Policies and Dispute resolution mechanisms;
- Well framed user agreements;
- Valid advertising, linking and other revenue generation models; and
- Well thought out content aggregation plan and policy.
The next post will focus on IP infringement and possible actions on Social Media.
Other posts in this series:
- Social Media and Intellectual Property – Part I: Protection and Ownership
- Social Media and Intellectual Property (IP): Part II – Distribution and Dissemination 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
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