To each their own right (copyright exists on Facebook too)

Every second, 41k posts are published on Facebook, and 3600 pictures on Instagram. Once published, to whom do they belong? How is copyright given out? How many times did a picture, posted on a social media,travel around the Globe, ending up in both national and international media channel, and actually becoming a marketing tool? Who received the remuneration for the spreading of such a content? Is it its author or Facebook Inc.?

Copyright and social media

Premise: in Italy the copyright is a legal protection automatically applied to each creative product, even when the author did nottake care of signalling it with disclaimers such as ‘’ reserved reproduction’’, ‘’all rights reserved’’ and similar ones. On the contrary, it is the authorization to free use that has to be suitably specified: as a consequence of this, special usage licences were created, each of them having its own terms and conditions. It is the case, for example, of Creative Commons, or else ‘’standard’’ licences applied by some social media (just like YouTube does with published videos). So, though it might be a boring job, before publishing (or reusing), go read the terms of service of the social media you are using!

Copyright according to Facebook

Raise your hand if you have ever read Facebook’s Terms of service. Well, you should know that it this is not the end of it:ToS are inspired by USA legislation, but what rules is the law of the Country where the user is operating. What does it mean? Basically, if a point in the terms of use of Facebook is in contrast with the Italian law, and you are working on Italian grounds, Italian law wins. So being said, let us have a better look at the second article, the one titled ‘’Sharing data and information’’: ‘’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)”.

So, publishing an IP content on Facebook does not make it of public domain, nor does it make contents a property of Facebook Inc., which in fact only has a (not even exclusive) use license: the content of the published content remains of the author, and the license refers to the possibility of “sharing” and spreading the post. On top of this, it is not necessary for the author to indicate his name on the content if it is published on a social medium, as the profile’s paternity, unless otherwise proven, is sufficient to show the ownership of the content.

Finally, we recall that the link, also in the form of deep linking and content embedding, is always allowed on the network. So, when while publishing contents we choose the “public” option (amongst “only me”, “friends only”, “public”), we authorise the free circulation of our post by means of links. What is instead forbidden is to download the content of the link and to republish it into another location without the prior and express permission of the holder.

What if I do not follow the law?

In case of undue appropriation of the content, the rightsholder is entitled to the “infringement of copyright damage”. The penalty is obviously pecuniary, and it is quantified by a series of factors: – the quality of the work, though very subjective – the timefor which the act was perpetrated, that is, how long it was public and visible reusable content – the missed profit for the author, that is, the economic loss caused by the “theft”, estimated on the basis of the economic return that would have been obtained if the act of piracy had not taken place-the usefulness received by the illegitimate exploiter, that is, whether they have benefited from an economic benefit (also not for profit) – the purpose with which appropriation has been carried out (commercial purposes or not).

Often for the quantification of the damage reference has been made also to the tables used by SIAE in the compendium of norms and remunerations for the production of figurative, plastic and photographic art.

 

Legal boundaries are still foggy

It would seem as everything were defined in details, but as a matter of fact the catch is already in the first lines of our article: what is meant by “creative content”? How is it determined, objectively, that the picture I just took is creative? In effect, in Italy, the copyright law protects all the works that have a minimum of creativity. Comparative law scholars are racing to get a finite definition of the type of content and its uses, looking for criteria according to which to define the judgment of “creative content.”

For the major part, at present, the “digital watermarks” play a key role – the digital watermarks with which the author “signs” the picture. That is, a photo filter may be enough to make the product protected by copyright.

This multiplies the number of contents that could be considered as creative content, because with modern tools being available to the general public (we think of the very many smart apps available) anyone can claim copyright even on shots that might have, in itself, minimal artistic value. For the time being, then, every sentence becomes a case study. We hope jurists will soon find an agreement on how to designate “creative content” so that we can move safely in the social rights field.

 

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Lorena

Brescia, born in 1994. I study engineering and I ask myself lots of questions about society. I like writing about different points of view.