Tweets not open to sim­ple cut and paste

None­the­less writ­ing must be sub­stan­tial enough to en­joy copy­right

Business Day - Business Law and Tax Review - - FRONT PAGE - WALDO STEYN

AS FAR as I know, pub­lish­ing some­one’s con­tent as your own is pla­gia­rism. But does the “twit­ter­sphere” have a dif­fer­ent set of rules? This ques­tion was re­cently asked by a frus­trated Busi­ness Day TV ex­ec­u­tive in the con­text of the “stolen tweets” story, one of sev­eral copy­right sto­ries to make the news re­cently.

The story re­lated to the fact that CNBC Africa had copied a num­ber of the tweets that Busi­ness Day had posted in re­spect of the mid-term bud­get speech (the mini-bud­get). Here’s one of them: “Largest waste­ful ex­pen­di­ture is con­sul­tant ser­vices. Bet­ter con­tract man­age­ment needed. Pro­poses stricter con­trol of con­sul­tancy fees.”

CNBC Africa ad­mit­ted that it had done wrong and it apol­o­gised. It put the blame on a ju­nior in­tern and it promised that there would be strict dis­ci­plinary ac­tion.

So do dif­fer­ent rules ap­ply to Twit­ter post­ings? The an­swer’s no, and we know this from a case re­gard­ing a press pho­tog­ra­pher called Daniel Morel. In 2010 Morel took a se­ries of dra­matic pho­tos of the Haiti earth­quake and posted them on Twit­ter. When a me­dia house used th­ese pho­tos with­out his per­mis­sion, Morel sued for copy­right in­fringe­ment. He won his case, with the US court not­ing that al­though Twit­ter's terms of ser­vice may en­cour­age peo­ple to share the pic­tures they post, it does not de­prive them of their copy­right. It’s not a bad thing to re­mind our­selves from time to time that the in­ter­net has not de­stroyed copy­right — some­thing posted on the in­ter­net en­joys copy­right in the same way that some­thing that's printed on pa­per does.

But is a tweet dif­fer­ent from a photo posted on Twit­ter? In or­der for any piece of writ­ing to en­joy copy­right it must be orig­i­nal, which in copy­right terms sim­ply means that it must have been the re­sult of the au­thor’s own en­deav­ours and not copied. So the law cer­tainly doesn’t re­quire the writ­ing to be cre­ative or clever. Yet there is a sort of “de min­imis” thresh­old, with the law re­quir­ing the writ­ing to have at least a mod­icum of sub­stance. So, for exam- ple, a court held that the song ti­tle “The Man Who Broke the Bank at Monte Carlo” was not sub­stan­tial enough to en­joy copy­right.

Many peo­ple feel that ad­ver­tis­ing slo­gans are in the same cat­e­gory, which is one of the rea­sons why com­pa­nies reg­is­ter them as trade­marks. Yet in a re­cent UK case called Melt­wa­ter, the court held that news­pa­per head­lines can en­joy copy­right be­cause they do of­ten in­volve skill and ef­fort.

A tweet, be­ing any­thing up to 140 char­ac­ters, is usu­ally longer than a head­line. And there’s some skill in­volved in get­ting a point across in so few char­ac­ters. So yes, a tweet will of­ten en­joy copy­right. But it does of course de­pend — if you Tweet some­thing like “I’m re­ally an­gry”, don’t ex­pect le­gal ex­clu­siv­ity!

The stolen tweets case has been com­pared to the on­go­ing case of Moneyweb and Me­dia24. This is the case where Moneyweb al­leges that Me­dia24 has, through its Fin24 ser­vice, in­fringed Moneyweb’s copy­right by sim­ply copy­ing parts of its ar­ti­cles, with­out both­er­ing to sum­marise them, and with­out any at­tri­bu­tion or links to the orig­i­nals. Me­dia24 claims that what it’s done falls within the fair copy­ing de­fence, and that it’s part and par­cel of the rel­a­tively new ser­vice of news ag­gre­ga­tion. The Moneyweb case is, in fact, closer to the re­cent Sir Alex Fer­gu­son case than the stolen tweets case. Fer­gu­son, the re­cently-re­tired man­ager of Manch­ester United, has pub­lished a book called My Au­to­bi­og­ra­phy. Given Fer­gu­son’s long and suc­cess­ful ca­reer, as well as his pen­chant for plain speak­ing, the book has cre­ated con­sid­er­able in­ter­est.

But the BBC man­aged to an­noy Fer­gu­son and his ghost­writer by quot­ing great chunks of the book. The BBC claimed that this was fair deal­ing.

So just what is fair deal­ing? Well, we can look to sec­tion 12 of our Copy­right Act for an an­swer, and we’ll be told that the copy­right in a writ­ten work will not be in­fringed by fair deal­ing which is for the pur­poses of crit­i­cism, re­view or re­port­ing cur­rent events, if the source is men­tioned. But just how much is fair? Here we can look to the words of

one of the UK’s great­est judges, Lord Den­ning: “It is im­pos­si­ble to de­fine what is ‘fair deal­ing’. It must be a ques­tion of de­gree. You must con­sider first the num­ber and ex­tent of the quo­ta­tions and ex­tracts. Are they al­to­gether too many and too long to be fair? Then you must con­sider the use made of them. If they are used as a ba­sis for com­ment, crit­i­cism or re­view that may be a fair deal­ing. If they are used to con­vey the same in­for­ma­tion as the au­thor, for a ri­val pur­pose, that may be un­fair.

“Next you must con­sider the pro­por­tions. To take long ex­tracts and at­tach short com­ments may be un­fair. But short ex­tracts and long com­ments may be fair.”

In the fi­nal ex­am­ple, Robin Thicke’s mega-suc­cess­ful song Blurred Lines, which he per­forms with Phar­rel Wil­liams, is al­most guar­an­teed to make you feel good. Ex­cept per­haps if you’re one of the chil­dren of the late singer and song­writer Marvin Gaye who claim that Blurred Lines in­fringes the copy­right in three of Gaye’s songs, par­tic­u­larly the song Got to Give It Up.

Af­ter al­le­ga­tions of copy­right in­fringe­ment sur­faced, Thicke of­fered the fam­ily a set­tle­ment which they re­fused. He then went to court seek­ing an or­der declar­ing that his song doesn’t in­fringe copy­right, and the fam­ily coun­ter­claimed for copy­right in­fringe­ment. The mat­ter is on-go­ing.

This case raises some in­ter­est­ing is­sues re­lated to what’s some­times re­ferred to as the “idea/ex­pres­sion di­chotomy”. What this means is that copy­right pro­tects the ex­pres­sion of the idea but not the idea it­self. Thicke ad­mits that he was in­spired by Marvin Gaye and he’s been quoted in the press as fol­lows: “Phar­rell and I were in the stu­dio and I told him that one of my favourite songs of all time was Marvin Gaye’s Got to Give It Up. I was like, ‘Damn, we should make some­thing like that, some­thing with that groove’.”

But he claims that the sim­i­lar­i­ties be­tween the songs are con­fined to “com­mon­place mu­si­cal el­e­ments”, in­clud­ing the high falsetto voice, vo­cal and mu­si­cal lay­er­ing, and beat. He ar­gues that Blurred Lines was in­tended to be a trib­ute to an era and rem­i­nis­cent of a “sound” or genre, but that there’s been no copy­ing. As copy­ing is a re­quire­ment for copy­right in­fringe­ment, the case will prob­a­bly go down to ex­pert ev­i­dence.

This case is quite sim­i­lar to a case we re­ported on some time back — the case of Guy Hobbs and El­ton John. What hap­pened there was that Hobbs claimed that he had penned a song called Natasha, which was based on a short re­la­tion­ship he had had with a Ukrainian woman while he was work­ing on a Cold War-era Soviet ship. He claimed that he had sent his song to El­ton John but that it had never been ac­knowl­edged. He claimed that El­ton John’s song Nikita was an in­fringe­ment of his copy­right. A US court found against him, say­ing that the shared fea­tures — the theme of Cold War love, the con­cept of unan­swered cor­re­spon­dence, the use of generic phrases, and the rep­e­ti­tion of the song ti­tle in the cho­rus — were too com­mon and clichéd to en­joy pro­tec­tion.



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