‘My post of yesterday already has 97 likes and three shares. That’s great! Keep sharing and liking it! But remove it immediately from the wall of the Rotten Party! And don’t even think about using any of my photos on a website of a vegan barbeque joint without paying me! This is monkey business, I’m telling you!’
Does that sound familiar? It is nice to have your photos, videos, or blog posts shared, but they had better not be used by people with whose ideas you disagree or who attempt to use your creation to promote their business. Let’s take a look at what you can demand, how and of whom you can make such demands.
All posts are protected under copyright
Pursuant to the law, an author has the exclusive right to use his/her work in any manner, to authorise or prohibit the use of the work by other persons and to receive income from such use. Copyright arises automatically when an original work is created and remains in force until the author’s death plus a further seventy years. The purpose, value, specific form of expression, or manner of publication cannot form the grounds for any failure to recognise copyright. Publishing the work through any channels (including social media) will also not render copyright void or invalid.
Posting = permission for use on the platform?
Anyone using social media platforms, including Facebook (hereinafter also referred to as ‘FB’), must, however, keep in mind the fact that the terms and conditions of use for the platform in question may include provisions which are based upon the author granting to the administrator of the platform and/or other users of that platform the right to use their work under certain conditions.
For example, based on Article 3.3.1 of Facebook’s Terms of Service, by sharing, posting, or uploading content that is covered by intellectual property rights, the user grants to Facebook a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide licence to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of their content (consistent with their privacy and application settings). This licence can be withdrawn by deleting the shared, posted, or uploaded work. Furthermore, in Article 20 of its Community Standards, Facebook asks users to respect other people’s copyrights, trademarks, and other intellectual property rights and to make sure, before sharing any content, that they have the right to do so.
A post = everyone’s right to use?
Facebook’s terms of service do not unambiguously determine how one user’s content may be shared by others. Without detailed information about the practice of settling Facebook disputes, one may presume that FB probably approaches user complaints based on the perspective that as long as you have not applied any restrictions by using your privacy settings or the relevant application’s settings, all other users are free to share the content that has been posted by you within the FB environment. When it comes to using content outside of Facebook, however, they should ask your permission.
Other platforms may have established different terms and conditions. For example, in Articles 3b and 3c of Pinterest’s Terms of Service, it has been established that by posting content, the user grants a non-exclusive licence to the administrator of the platform as well as to all other users for the use of their content within Pinterest. Any users who have saved your post retain the right to use and share it within the platform even after you have deleted the original post.
In addition, it doesn’t matter if ‘you’ are a private individual or a company – the same rights to use your content apply to other users.
How can you enforce your copyright?
It is also likely that Facebook presumes that users make use of the mechanisms for restricting use where these are offered by FB (such as through the privacy settings that are available under settings for individual posts, photos, etc., as well as in settings for groups), instead of including separate user rights in a random language and formulation in a random place (such as in a post, in the title of a photo, or in the description or opening post of a group). In other words, if you would like to prevent distribution of your text or photo outside of a certain group, you must post it so that it is only accessible by the specific group. If you wish to permit distribution of your content outside of the originally-used platform, you can, for example, use the Creative Commons licences.
If someone has shared your posts or photos within Facebook in a manner which entails a disregard of the terms of service and privacy settings (such as a member of a closed group who has taken a screenshot of your post and has shared it outside of the group), you may contact FB and have removed any content which violates your rights. If the content has been copied outside of Facebook, however, FB can no longer help you.
In the latter case, you have to contact the violating party directly to be able to defend your rights, or initiate legal action through the courts or submit a complaint to the police. The working group for intellectual property and media rights at TRINITI can naturally come to your assistance as well.
