With the prevalence of animated gifs, videos, music and other works being shared on social media, it may come as a surprise to some that such works may be subject to copyright protections. So with that being said, what are the laws in relation to copyright, and what type of impact do intellectual property laws have on social media in Australia?
What works are subject to copyright?
The type of materials that are subject to copyright protection can be found in the Copyright Act 1968 (Cth) (the Act). Part III of the Act grants exclusive rights over original works as defined in s 10(1) as:
- literary works, including computer programs;
- artistic works, including photographs, drawings, maps and plans; and
- dramatic works.
Looking to Part IV of the Act, exclusive rights are granted over subject matter other than works which includes:
- sound recordings;
- cinematograph films;
- sound and television broadcasts.
How does copyright law operate?
Broadly speaking, an owner of a copyright protected material holds exclusive rights to reproduce or use the material in a manner they see fit, including how such material is communicated in the public domain. Additionally, the Act also enables copyright owners to prevent another person from unauthorised use of the protected material, and to recover damages.
How does a person obtain ownership of copyright?
The person who creates the material will own the copyright. However, there are exceptions, such as an employee who creates or authors material in the course of their employment, or where the terms of a contract are as such, the rights are assigned to the person or the business that commissions the material.
Copyright can be assigned to another person
Owners of copyrighted material can assign the rights to another person by way of a transfer for its value, gift, or a bequest in a will. When assigning a copyright to another person, it must be done in writing and upon completion, the person for whom the copyright has been transferred to will be the new owner.
Exclusive and non-exclusive rights
The law acknowledges that copyright owners to licence their material for others to use. The licences can be exclusive, where a person is able to use the material in a certain manner, or for a specific period of time, or within a particular geographical region. For the original owners of the material, they may be prevented by the exclusive licence from making use of the material during the term of the licence.
In addition to exclusive rights, a licence can also be non-exclusive, with multiple parties possessing the right to use the material. While in contrast to exclusive rights, the owners are still able to use their property in relation to non-exclusive licenses.
Copyright infringement generally occurs when protected material is reproduced, distributed, performed, adapted, or communicated publicly without either the expressed or implied permission of the owner.
Copyright and social media
The copyright of any original material produced still remains with the owner. However, the terms of service for most social media sites can be categorised as a broad licence allowing for sites such as Facebook and Twitter to use, and publish user produce content. As an example of the type of term of service that social media sites may use, we can look to Facebook’s sharing and content terms of service which are as follows:
“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 delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
- 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).
- We always appreciate your feedback or other suggestions about Facebook, but you understand that we may use your feedback or suggestions without any obligation to compensate you for them (just as you have no obligation to offer them).”
It’s probably fair to say that the majority of readers have shared some type of copyright protected content on a social media site, and we’re sorry to be wet blankets, but unauthorised use of intellectual property can open up a person to liability.