10 August, 2015

Tweets Stolen - Further Thoughts on Tweets and Copyright

The impact of social media on today's social interaction is undeniable, with people turning to Instagram, Facebook and Twitter for more and more of their entertainment, social and news needs. As this new interaction space has grown, and seemingly keeps growing, the value of the content within it has grown as well. This writer recently noted newly emerged discussion surrounding Twitter and reusing jokes and/or content lifted from Tweets, especially in the light of having discussed this on a very superficial level some time ago, I thought it merited expanding more in detail.

In a recent development it has come to light that Twitter hides certain tweets it deems to be infringing copyright, pending a response from the copyright holder as to their respective fates. This is expanded on in Twitter's Copyright and DMCA Policy: "Twitter will respond to reports of alleged copyright infringement, such as allegations concerning the unauthorized use of a copyrighted image as a profile photo, header photo, or background, allegations concerning the unauthorized use of a copyrighted video or image uploaded through our media hosting services, or Tweets containing links to allegedly infringing materials". One has to note that, although the policy does focus on images and videos, it does leave its definition of "copyright infringement" as open-ended, potentially catching tweets themselves.

This begs the question, is a tweet protected by copyright? As discussed in my previous article, the UK Copyright, Designs and Patents Act 1988 does not set a limit on what can amount to a copyright protected literary work, which allows for even tweets to be potentially protected under the provision. As long as the work originates from the author and contains a certain level of originality. The ECJ decision in Infopaq International A/S v Danske Dagblades Forening further elaborated on what amounts to originality, with the court deciding that a work is protected by copyright if it is "...the expression of the intellectual creation of [the] author". So long as you have put in effort and some level of choice and creativity into your work, even a tweet, it would arguably be protected by copyright within the UK and the EU, irrespective of the tweet's length (140 characters or fewer).

Twitter can be serious business
In the US things can potentially be a little different. Under 17 USC section 102 copyright protection extends, much like in the UK, to literary works. The provision itself does not prescribe any length requirements no works for copyright to be applicable, and section 101 offers no further assistance in answering the above question. The Electronic Code of Federal Regulations aids somewhat, as section 202 of the Regulations stipulates that works that will not (necessarily) be protected by copyright are "[w]ords and short phrases such as names, titles, and slogans" - although, the CFR merely sets these out as examples, not definitive limitations. Whether a tweet would count as a "short phrase" and therefore is not protected would remain an assessment of its creativity (as was discussed in Arica Institute Inc v Palmer, for example), as if the phrase exhibits a minimal amount of creativity, it would arguably be protected by copyright in the US.

As can be seen Twitter and tweets do pose a challenge to copyright and whether its protection extends to them within the common law. Although literary works are nearly universally protected all over the world, their length and specific content does dictate the protection afforded, especially when its creativity or originality comes into question. One big consideration is the monetization of tweets and whether they would ever merit protection to the point where they would be challenged in court. This writer would love to see a tweet or a series of tweets be evaluated by the courts at some point, but heavily doubts the likelihood of this ever happening. Without judicial consideration one can still very much appreciate the creativity of tweets and their content, as the character limitations present a unique obstacle to comedic delivery; something when achieved can be powerful.

Source: The Verge

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