Guest Column

The small T’s and C's of social media

2017-07-23 06:05

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Hugh Melamdowitz

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 non-exclusive, 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.

The distinction is often blurred

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.

Melamdowitz is a partner at Spoor & Fisher

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