The small T’s and C’s of so­cial me­dia

On so­cial me­dia, as in life, it is al­ways ad­vis­able to fall back on good man­ners, writes Hugh Me­lam­dowitz

CityPress - - Voices - Me­lam­dowitz is a part­ner at Spoor & Fisher

So­cial net­work­ing is in­creas­ingly be­com­ing a daily rit­ual for many South Africans. Ac­cord­ing to World Wide Worx’s SA So­cial Me­dia Land­scape 2017, Face­book is now used by more than 25% of South Africans, while YouTube has firmly moved into sec­ond place with 8.74 mil­lion users, well out­pac­ing Twit­ter’s 7.7 mil­lion. Instagram now has 3.5 mil­lion users, grow­ing the fastest at over 32%.

The pri­mary pur­pose of so­cial me­dia is shar­ing con­tent. Con­sider this: about 350 mil­lion pic­tures are up­loaded to Face­book daily and users gen­er­ate more than 4 petabytes of data every day. The spurt in the use of these chan­nels has added to the con­cerns of in­tel­lec­tual prop­erty (IP) pro­tec­tion on the in­ter­net and the com­plex­ity of its en­force­ment.

The quandary over who owns what and how so­cial-me­dia terms of use come into play are rel­e­vant ques­tions in an age where what you say or sing can make you in­stafa­mous. There is the prob­a­bil­ity that as a mem­ber of Face­book, Twit­ter or Instagram, you would have glided over the page and clicked on “I Agree”, that in­nocu­ously ap­pear­ing prompt at the bot­tom of the screen, with­out read­ing the li­cence agree­ments, terms of ser­vice or the pri­vacy poli­cies.

You may be shocked to know that by click­ing on “I Agree” you have granted the site a li­cence to use your cre­ative work, pho­to­graphs, writ­ten ma­te­rial, videos etc, and also granted them the right to sub­li­cense the use to other mem­bers. For ex­am­ple, un­der Face­book’s cur­rent terms, by post­ing your pic­tures and videos, you grant Face­book “a nonex­clu­sive, trans­fer­able, sub­li­cens­able, roy­alty-free, world­wide li­cence to use any IP con­tent that you post on or in con­nec­tion with Face­book (IP Li­cence)”.

Un­der copyright law, un­less the work was pro­duced as part of your job, the copyright gen­er­ally be­longs to the cre­ator. As the copyright owner, you have the ex­clu­sive rights to use and dis­trib­ute your work as you see fit and no one is al­lowed to copy the work with­out your per­mis­sion. If you are a well-known face, you have a right to pub­lic­ity, which al­lows you to get paid for the com­mer­cial use of your name, like­ness or voice.

Now imag­ine your­self as a budding pho­tog­ra­pher who posted a pic­ture on a so­cial me­dia chan­nel or as a celebrity who posted new im­ages from a re­cently held shoot to much “Likes” and “Loves” only to find the im­age ex­pro­pri­ated by a lead­ing ad­ver­tis­ing agency for an award-win­ning cam­paign.

As soon as you up­load any cre­ative work on so­cial me­dia you are in ef­fect entering into a con­tract with the site un­der which other users can use or re­pro­duce your work for non-com­mer­cial pur­poses. That dis­tinc­tion is of­ten blurred as many so­cial me­dia users as­sume that be­cause the pic­ture or work is in the pub­lic do­main, us­age does not con­sti­tute copyright in­fringe­ment. This is not true.

The de­fence of pub­lic do­main with re­spect to in­tel­lec­tual prop­erty does not ex­ist – just as you can­not pho­to­copy a book or ex­tract im­ages from it just be­cause it is avail­able pub­licly. One should look at the ap­pli­ca­bil­ity of copyright laws on so­cial me­dia just as one would view it off­line. Copyright law pro­tects orig­i­nal works of au­thor­ship in­clud­ing pho­to­graphs, videos and writ­ten work on so­cial me­dia sites. As a gen­eral rule, a per­son who cre­ates an orig­i­nal work owns the copyright.

Shar­ing copy­righted work on so­cial-me­dia sites com­pro­mises sev­eral of these ex­clu­sive rights, and may con­sti­tute in­fringe­ment. The pos­si­bil­ity of in­fringe­ment must be viewed against the “terms of use” of so­cial-me­dia plat­forms which of­ten grant mem­bers a sub­li­cence to use it; un­der these cir­cum­stances for­ward­ing an im­age would not con­sti­tute copyright in­fringe­ment, if the use is for “non-com­mer­cial” pur­poses.

While cer­tain uses of copy­righted con­tent on so­cial-me­dia sites may be con­sid­ered “fair use” rather than in­fringe­ment, it is for the case law to de­ter­mine what could con­sti­tute fair use. Fair use is not de­fined by South Africa’s Copyright Act. Un­for­tu­nately, there is no case law in South Africa at this stage, and in any event, fair use would usu­ally not cover com­mer­cial use.

On so­cial me­dia, as in life, it is al­ways ad­vis­able to fall back on good man­ners and if you want to use some­thing that is not yours (es­pe­cially for com­mer­cial pur­poses) find the orig­i­nal source and get per­mis­sion first in­stead of sim­ply copy­ing and past­ing. In law, ig­no­rance is not a good de­fence.

8.74m USERS

14m USERS

7.7m USERS

3.5m USERS

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