DATE DOWNLOADED: Fri Jul 31 19:30:01 2020

SOURCE: Content Downloaded from HeinOnline

Citations:

Bluebook 20th ed.

Nick Bolter & Gareth Dickson, Courts Address the Social Media-Copyright Clash, 237
Managing Intell. Prop. 39 (2014).

ALWD 6th ed.

Nick Bolter & Gareth Dickson, Courts Address the Social Media-Copyright Clash, 237
Managing Intell. Prop. 39 (2014).

APA 7th ed.

Bolter, N., & Dickson, G. (2014). Courts Address the Social Media-Copyright Clash.
Managing Intellectual Property, 237, 39-41.

Chicago 7th ed.

Nick Bolter; Gareth Dickson, "Courts Address the Social Media-Copyright Clash,"
Managing Intellectual Property 237 (2014): 39-41

McGill Guide 9th ed.

Nick Bolter & Gareth Dickson, "Courts Address the Social Media-Copyright Clash"
[2014] 237 Managing Intellectual Property 39.

MLA 8th ed.

Bolter, Nick, and Gareth Dickson. "Courts Address the Social Media-Copyright Clash."
Managing Intellectual Property, 237, 2014, p. 39-41. HeinOnline.

OSCOLA 4th ed.

Nick Bolter and Gareth Dickson, 'Courts Address the Social Media-Copyright Clash'
(2014) 237 Managing Intell Prop 39

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
Courts address the social
media-copyright clash
Social media increasingly poses athreat to traditional copyright concepts. Nick Bolter and Gareth
Dickson examine what happens when an irresistible force meets an immovable object

e-commerce law, about data protection and privacy, about freedom of speech
and regulationsocial
he competent mediaimportantly,
and, most know aboutofIPthese
how thetocombination
be interested
adviser will about law and
fac-
tors shapes the social media marketing landscape within the European Union.
Social media, and indeed the internet in general, relies on the free flow of infor-
mation, the rapid and lossless reproduction of content, and the global reach of every
interaction. Yet copyright law, in stark contrast, restrains the reproduction and dis-
tribution of content along territorial lines. Surely something has to give.
Although the Court of Justice of the European Union (CJEU) has dealt with copy-
right cases before, a number of pending cases look set to have a direct impact on
social media. In particular, the CJEU is called upon to determine whether owners of
content made freely accessible online can prevent users from linking to or embed-
ding that content. A finding that they cannot puts pressure on the rule of law, if not
also the ability of social media to enhance the free flow of information. A finding
that linking and embedding can only be restrained in exceptional circumstances
makes efforts to fight piracy more difficult and expensive.
In order to appreciate the importance of these issues and to consider how the law in
this area may shape the use of social networks in the near future, it is necessary to under-
stand the copyright framework within which social media must operate. If a platform
cannot put forward a credible argument that it operates within the law, it will lose the
investment necessary to grow and compete in an increasingly crowded marketplace.
What follows is an overview of the relationship between EU copyright law and
social media in early 2014, as well as some practical guidance for those accused of,
or accusing others of, copyright infringement. We will also consider why compliance
with EU copyright law has suddenly become a priority for social media platforms
with a presence in the UK.

What content is subject to copyright law?

Copyright can subsist in a variety of forms of expression, in particular in original lit-
erary, dramatic, musical and artistic works. "Original" in this sense means that the
work is the author's own intellectual creation: it will be no surprise that most images Legal vtechnological
posted on social media will meet this requirement, and Pinterest's navigation of copy-
right law is well documented. The more interesting question is whether short textual
change
content can also be protected by copyright. This issue has been addressed by the CJEU Although legal and technological change
in Case C-5/08 Infopaq. That case concerned newspaper articles protected by copy- function very differently, they share a common
right and 11-word extracts reproduced and re-circulated by a clippings service. The objective of acting for the greater good
CJEU held that an 11-word extract from a protected article could indeed infringe the Legal change Technological
copyright in that piece if it contained elements which are the expression of the intel-
change
lectual creation of the author. As such, the test is largely qualitative in that there is no
minimum character count needed to protect copyright or to infringe it. Design within the box There isno box
The Court of Appeal of England and Wales considered the Infopaq test in NLA v
Less competitive Speed/competitive
Meltwater [2011] in relation to what protection could be granted to newspaper head- pressure advantage
lines. The Court heard evidence about the creative process for writing headlines and
how it can be distinct from the article-writing process. This led the Court of Appeal to Centralised Decentralised
find that there is no bar to headlines being protected by copyright independently from
Accountability Limited
the copyright in the body of the article. In other words, the unauthorised reproduction accountability
or communication to the public of a heading can infringe copyright.
These cases are perhaps most relevant to microblogging sites, where brevity was gen- Obligation to do it For the thrill of doing
erally assumed to make copyright infringement unlikely. Nonetheless, 140 characters is it
considerably longer than most headlines: a report by Schwartz and Business Wire in For the greater good For the greater good
2011 found that 77%o of the 16,000 press releases surveyed kept their headlines to fewer
than 70 characters. Accordingly the consequence of the Court of
Appeal's finding in Meltwater must be that tweets and other
microblog posts are capable of being protected by copyright as a
matter of European law and will have to be assessed on a case-
by-case basis. (The position may be different in the US, where the
recent unauthorised use of an edited tweet by film critic A0
Scott in an advertisement promoting "Inside Llewyn Davis" in
the New York Times has kept the debate alive.)
The copyright owner's rights
Among the bundle of rights granted by copyright are the right
under Article 2 of the Information Society Directive to repro-
duce a work (the reproduction right) and the right under
Article 3 of that Directive to communicate a work to the pub-
lic (the communication right). Absent defences, these acts can
only be carried out in relation to the whole of a work or a sub-
stantial part of it with the authorisation of the copyright owner.
The reproduction right
The High Court and the Court of Appeal in the Meltwater lit-
igation considered that users can infringe the reproduction
right simply by viewing content on their computers, since the
content is reproduced on screen and in the computer's cache.
The issue was appealed to the Supreme Court, which has taken
the view that such reproductions are exempted from being
infringements under the temporary copies exemption provided
for in Article 5(1) Information Society Directive. The Supreme
Court has asked the CJEU to clarify this issue (in Case C-
360/13 Public Relations Consultants Association), but this
clarification is not expected before early 2015.
The Infopaq and Meltwater cases raise questions about the
potential liability of networks, such as LinkedIn and Facebook,
which invite users to paste a link into their status updates
whereupon the platform will reproduce the page title and first
portion of the page content. If that headline or the reproduced
portion of the article contain elements which are the expression
of the intellectual creation of the article's author, then there is
at least a prima facie case for copyright infringement.
Similarly, where the web address of an article reproduces
that article's headline (so-called vanity URLs, which are used
to increase the search engine ranking of the page), the mere
presence of the link could itself, in the right circumstances, be
an infringement of copyright in the headline, particularly
where the user is based in a country that does not have broad
fair use defences, such as the UK.
Some rights holders have gone further than arguing that their
permission is required to reproduce protected content and
have argued that hyperlinks communicate works to the public,
and accordingly require permission of the rights holders.
In proceedings involving another newspaper service, the
Court of Justice in Case C-466/12 Svensson had to consider
whether links to content posted by the rights holders and freely
accessible to anyone on the internet, amounted to an unlawful
communication to the public of the rights holder's work. The sta-
tus of links to infringing content was not directly addressed.
In a short judgment, the Court held that linking to material
made freely accessible online by the rights holder does not infringe
the communication right. The Court reasoned that since a linked-
to work is only being communicated by the same means and to
the same public as was targeted by the rights holder, the link has
not dealt with the work in any "new" way not already authorised
by the rights holder. The CJEU suggests that the same is true
where an original file is embedded in a third party's webpage,
Ii .C
although a fuller discussion of that issue will have to wait until the
CJEU hands down its judgment in Case C-348/13 BestWater
International and Case C-279/13 C More Entertainment.
There are two exceptions to the legality of linking as set out
in the CJEU's judgment in Svensson. The first is where the link
provides access to a work but the work is no longer available
to the public. Since it is impossible to provide online access to
a work that is no longer online, this exception suggests that the
prima facie legality of links extends to links to reproductions of
material originally made freely accessible by the rights holder,
even though some of these might infringe copyright. The judg-
ment is not clear on this point and further litigation will be
required to ascertain the meaning of this exception.
The second exception is that it is not lawful to provide a
link which enables users to circumvent restrictions on public
access to a work, for example paywalls or geo-blocking tools
(although links capable of achieving this will be rare since
most hosts have multiple security measures in place). Although
terms of service might be a good place to start for demon-
strating that the website owner has in place "restrictions" on
public access to online works, it is likely that only technical
measures will provide effective restrictions.
Hosts' liability and safe harbours
Although it is users who post content to social media networks,
those platforms reproduce that content and display it to the pub-
lic. They are therefore an attractive target for rights holders seek-
ing to arrest the widespread but unauthorised dissemination of
their works with a single action. Yet networks cannot monitor
every single post made using their services, at least not without
significant cost to the social media model. To attempt to find a
balance, the European legislature passed the E-Commerce
Directive in 2000 to exclude a host's liability for acts which would
otherwise be infringements. Under this provision, an "informa-
tion society service provider" (that is, most social networks and
internet service providers), can escape liability for copyright and
other infringements for acts which are "neutral, in the sense that
[the host's] conduct is merely technical, automatic and passive,
pointing to a lack of knowledge or control of the data which it
stores" (Joined Cases C-236/08-238/08 Google France). The safe
harbour may be lost, however, where an operator "has provided
assistance which entails, in particular, optimising the presentation
of the [infringing content] in question or promoting [that con-
tent]", or where it is "aware of facts or circumstances on the basis
of which a diligent economic operator should have identified the
illegality in question" and fails to expeditiously remove the mate-
rial or disabled access to it (Case C-324/09 L'Ordal v eBay).
Assuming that a rights holder can remove the host's safe
harbour, it will still have to prove infringement and, more par-
ticularly, will have to prove that culpable acts have taken place
within the jurisdiction in which the rights holder wishes to sue.
Since most direct infringements will take place where the net-
work is based, copyright owners based elsewhere may argue
that the host should be held jointly liable for infringements
committed by users within the rights holder's chosen jurisdic-
tion. Joint tortfeasorship, however, is not a matter of har-
monised EU law and is therefore assessed according to the law
of the member state in which the case is brought. In the UK,
the current standard is high: facilitating infringement is insuf-
ficient to create joint liability, even where the host knows that
infringements have occurred and are likely to occur in the
future, and profits from them (L'Ordal v eBay [2009]).
In an important development for all social media platforms,
however, the Court of Appeal in FootballDataco v Sportradar
[2013] has potentially changed the landscape for joint liability,
at least insofar as copyright and database infringements are
concerned. In that case, the Court of Appeal was asked to
determine whether a website operator is jointly liable for How content owners and hosts can
infringements occurring by virtue of users merely accessing
their site. The Court stated that:
avoid asocial media meltdown
If the answer is yes, then the owner of any website any- Content owners Hosts
where in the world will be a joint tortfeasor with a UK user Have an acceptable use policy * Ensure terms of service cover
of that website if the inevitable consequence of access to regarding what use of your the acts you intend to perform
that site by the user is infringement by that user. content, if any, isacceptable or inrelation to user generated
I would hold the answer to be yes. The provider of such a encouraged. It should be content, and bring special
website is causing each and every UK user who accesses his aligned with marketing strate- attention to onerous terms.
site to infringe. gy and take account of where * Secure separate agreements
In these circumstances, the social network itself can potential- inthe world the policy applies with content creators for uses
ly be held jointly liable for a user's infringements, and an argu- and what the law permits. of that content which restrict
ment can be made that, notwithstanding the complexity of the Educate your employees about their ability to commercialise
relevant rules, the courts of England and Wales can assert juris- your acceptable use policy, to their work.
diction over the network. Accordingly, whether the CJEU dis- prevent them from uploading * Have inplace a process for
agrees with the Supreme Court's interpretation of the temporary or endorsing unauthorised expeditiously investigating and
copies exemption in Meltwater will be of significant interest and content. responding to allegations of
concern to social media platforms, wherever they are based. Ensure that your acceptable infringement.
use policy isreflected inyour * Be aware of where you oper-
Limited protection of terms of service monitoring and reporting ate, inparticular where you
Many social networks have responded to the uncertainty sur- mechanisms, so that the most could be said to play an active
rounding what they may do with users' content by using their serious infringements are pri- role incontent creation and
terms of service to give them expansive contractual rights to oritised and the opportunities dissemination, since you could
deal with works in certain ways. The extent to which these for negative PRare reduced. be forced to litigate there.
terms can be enforced is a matter for national, as opposed to * Ensure that you can prove * Always be ready, from a legal
EU, law and to date remains unclear. The position in the UK ownership of copyright inyour and a PRperspective, to
has long been that "the more unreasonable a clause is, the works before using them and respond quickly and strongly
greater the notice which must be given of it. Some clauses ... inorder to provide hosts with to legal proceedings inany
would need to be printed in red ink on the face of the docu- notice of the infringement. country inwhich you operate.
ment with a red hand pointing to it before the notice could be * Involve your legal advisers in * Involve your legal advisers in
held to be sufficient" (J Spurling v Bradshaw [1956]). the creation, maintenance and the creation, maintenance and
The application of this principle to social media terms of enforcement of your market- enforcement of your policies
service has not been tested. However, such terms typically ing strategy and your accept- regarding the use of third
involve broad mandatory licensing provisions which could be able use policy. party content.
said to impair the ability of the rights holder to commercialise
that work for his own benefit. If such a term was held unen-
forceable, the subsequent reproductions, distribution and tent for this purpose, but whether or not to allow it remains a
commercialisation of that work may have all been infringing content owner's prerogative.
conduct, entitling the rights holder to damages and injunctive In theory at least, the harmonisation of the reproduction right
relief. Although not exactly on point, the case of Agence and the communication right as a matter of EU law means that it
France-Pressev Morel [2013] in the Southern District of New should not matter where in the European Union proceedings in
York shows the consequence of commercialising copyright relation to social media content are brought: the same "high level
content taken from social media networks without a licence: of protection of intellectual property" should be granted.
Morel was awarded $1.22 million in damages after eight of his Nonetheless, the different rules regarding substantive issues, such
images of the aftermath of the Haiti earthquake in 2010 were as joint tortfeasorship or the enforceability of terms of service, and
taken from Twitpic and reused without his permission. While procedural issues, such as disclosure of documents or the recovery
terms of service are clearly necessary for of costs, mean that choosing the correct venue
dealing with works in such a way as to for disputes still remains extremely important.
merely provide the service in question, the Businesses can take steps to protect them-
better course of action for further uses of selves by ensuring that their legal, marketing
content is to enter into a separate agreement and IT functions work together to create,
with the owner of that content. maintain and enforce clearly-defined policies
that take account of where the business oper-
Work together to define policies un managingip.com ates, what the law there permits, and what
As its name suggests, social media is predi- When
social media can be a brand their response to infringements should be.
cated on engaging with content and with owner's friend (February 2014)
other users. This takes many forms, whether Social media inEurope; tread softly
in terms of status updates, linking to content (September 2013)
likely to be of interest to others, or embed- Enterpreneurs seek internet-era copy- Gareth
right law (August 2013) Nick Bolter Dickson
ding interesting content within a blog post. Role play explains social media pitfalls
In many cases it will make good commercial (May 2013) Nick Bolter and Gareth Dickson 2014. The
sense for a business to allow some of its con- Brand owners must open up (December authors are respectively partner-in-charge and an
tent to be used in this way, or to create con- 2012) associate in Edwards Wildman's London office