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The conflict between social media and copyright

Sharing is an inherent feature of social media. But, asks Alice Gatignol, is there any way this can be reconciled with established principles of copyright protection?

One minute read

Social media has brought us a world of virtual sharing, as we use tools such as Instagram to share ideas, photos, quotes and more. This inevitably involves a loss of control, and the potential for copyright infringement. So, is social media a plus for creativity or a threat? It may be good for spreading awareness and opportunity, but brings the risk of being copied are high. Even where copyright information is provided on websites, it may not be easily accessible. Does this mean social media platforms need better regulation, does the law need to be more lenient, or is a more user-friendly system for resolving issues needed? And, above all, is it possible to find a solution that respects copyright but also enables the business models of social media?

We live in an era of virtual sharing, where friends "like" your moods and pictures, and social influence is the new highway to celebrity and success. As pointed out by Jonathan Gebauer (networking and social media thought leader and co-founder of exploreB2B): "The most defining characteristic of the decade we are living in now is probably the rise of social media. We all love connecting with people, adding friends, and most of all, sharing." At the heart of such technological advancement, an important question arises: whether copyright will survive and if so, to what extent? While technology is in constant development, IP law has struggled to keep pace and there is no evidence to suggest that it will ever keep up with all the new creative ideas the internet throws up. Such developments raise more questions than answers and often polarise points of view.

Web tools such as Instagram and other social media were created to publicly share ideas, photos, quotes and more, all over the world. Signing up to these platforms is accepting that your information will be shared with known and unknown people across the globe. It will be in the public sphere and you will lose control of whatever material is being posted. In fact, as Jose Paglieri said for CNN Money: "You forfeit certain rights by using a social media network. And once your photos are out in public they're out of our hands forever." For rights holders it seems impossible to keep complete control, especially in social media. The cases of Tuana Aziz, the professional photographer whose picture was used without permission on printed Mango t-shirts, and Daniel Morel, whose picture was used by Agence France-Press, are recent examples of the large number of copyright violations that occur daily. It also seems naïve to hope for people to act in good faith, or, moreover, to be aware of the legislation and think like lawyers.

For many creative individuals and businesses there is an apparent choice to be made between having social and worldwide exposure on the internet versus having revenue from copyright protection. Although one may not completely exclude the other, online sharing increases the risks of copyright violation. For new and enterprising individuals, social media has provided a platform where their work can be seen by a wide audience, globally and quickly. The potential opportunities to bring in commissions may outweigh the risks of material being copied or being the basis of inspiration for new works by others.

So, is social media a plus for creativity, or a threat? In the sense that access and sharing of work is made easy and accessible to all, social media is advantageous to creativity as it spreads awareness and provides opportunity. It also allows for tracking and finding violations over the web and renders these more accessible in a geographical sense. Nevertheless, posting work on social media is a risk as the chances of your work being copied are high, not least due to the simplicity in access and huge number of people accessing it as well as the core concept and fundamental principle of such public-sharing platforms.

The risk of drowning copyright law

Looking into more detail at the existing rules and legislation on violations of copyright in social media, the risks of the latter drowning copyright law are evident. Take Instagram for example; it has a regulations page with questions and answers. "What do I do in case of copyright infringement?", "How do I know if I am infringing a copyright?" appear in the "help" tab of Instagram, followed by detailed information for users. The platform provides good and detailed legal advice to users, but does anyone fully read these pages? Once again, the wide public cannot reasonably be expected to know of and apply rules of copyright, especially on a platform whose focus is photo-sharing. In the cases involving Richard Prince, there is a clear and recognised violation of copyright according to law and the New York artist controversially makes many of his works by appropriating copyright material of others. However, regulating such violations takes so much time, energy and resource that often a complainant will be forced to settle or drop a case.

Were Instagram regulated in a more copyright-protective way from the start, Cariou (whose work Prince took) would have had his endeavours protected effectively, and AFP and Mango, as mentioned earlier, would have been saved both time and money and avoided damage to their reputation. So, is the problem social media, which needs to regulate better its platforms in a copyright-friendly way, or the law, which needs to be more lenient on info-sharing? Or is there a need for a more user friendly system for resolving issues and getting or giving permission which meets the need of the technical and image sharing age?

Technology versus law

The internet has always been a challenge for intellectual property, as it not only makes use difficult to police, but also intertwines universal uses with nationally regulated areas. In addition, technology is clearly working much faster than policy-makers, leaving loopholes in the law and uncertainty in the artistic and creative fields. In most of the world today, there is a basic IP right which renders ownership of a creation automatic. A work is legally considered to be an individual's property, as enshrined in the Berne Convention, as well as other international treaties.

Yet, in the UK for example, the Enterprise and Regulatory Reform Act was created in 2013, apparently undermining artists and privileging public trade, despite an overall unclear legislation. It permits, for example, the commercial exploitation of images where no information on the owner can be found, known as orphan works. In this situation, the user of the work can act as if they are the owner of the work, when given permission by the Secretary of State, and commercialise it to their benefit. With such an Act, the UK seems to be adopting an American approach to copyright, privileging trade over individual creative empowerment. As Paul Ellis, a photo rights campaigner, said: "There's value in works, and if anybody can exploit them except the one who creates them, then value is transferred to the exploiter."

Finally, is there a solution to this, in which both copyright and social media are preserved? Is it possible to use social media in a completely IP-respectful way? There are platforms such as Lobster which are potential solutions. These offer images to buyers who can acquire cheap licences. However such a solution seems to deal only with the form of the issue without hitting the core of it. Unless social media adopts a system which offers a marketplace with a licence option, it is hard to believe such a solution would be able to cover the entirety of web-shared works which need protection. One, more radical, solution is for creative talent to stop posting work online which would mean a loss to the public of works which would otherwise not be exposed. On the contrary, we could adopt the attitude to fully enjoy and exploit the potential of social media, in which case acceptance of the current system and its loopholes is necessary, to expect no copyright protection and to take the risk of copyright works being taken and for commercial exploitation without compensation. As you read this, there are hundreds of unlawful uses taking place, which will, for the most part, never be detected. Who knows what the long term outcome will be? Will people become overly legalistic about copyright and begin to stifle creativity? Or will creative minds find a way to improve the security of copyright material making it possible to collect royalties automatically if someone else uses your work? Considering social media has become an indispensable tool of our generation, we can only hope for copyright to adapt and survive, without which creativity would be gravely endangered.

Tips for protecting IP in social media
  • Update internal IP policies to cover use of trade marks and copyright on social media
  • Have a social media policy and ensure employees and agencies comply with it
  • Know and understand the rules and conditions of licence for all the different social media platforms, reviewing their terms and conditions and privacy policies regularly.
  • Know what procedures are available to complain or take action on each social media platform
  • Educate employees on how and why they should protect the company's IP
  • Be vigilant and proactive in monitoring use by others of your important IP assets
  • Be realistic and fair in balancing valuable exposure for your brand or copyright work versus compensation
  • Check the rights of others before using or re-posting and where you need to buy rights make sure you do so directly from the owner,
  • Proactively sign up for user names in all existing and new social media platforms
  • Register your trade marks (and copyright where appropriate) to simplify taking action
  • Use available technological tools to avoid images and logos being cut and pasted from your website

Gatignol Alice Alice Gatignol

© Alice Gatignol 2016. The author is an international law graduate and intern with Burchell Consulting. Thanks to Katrina Burchell for additional input


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