Social media is changing the world, right? It is reducing the friction between thought and share. It is allowing new social connections and collectives. What it hasn’t done is change copyright law. I’ll give you a ‘yet’ after that, as long as you accept the premise. So what is this thing called copyright? Where does it come from, what does it include and how do I protect myself, respect others and get the job done.
This post is a continuation of my Intellectual Property 101 series. I talked about Patents on Monday. We will talk about trademarks next week.
In The Beginning
Copyrights as a concept go all the way back to the Greeks. Recognizing the notion of an individual self, the Greeks made a distinction between something made by a person from the rest of the society. This allowed for an assertion of the rights of attribution, the right to have a work published not under your name and the right to the integrity of the work. Collectively, these are all called moral rights. In Ireland, one of the first legal disputes over a copied work occurred surrounding the ownership of “The Cathach / The Psalter of St Columba.”
Historic footnotes aside, our modern system of copyright laws follows the widespread introduction and adoption of the printing press. It allowed for unlimited exact copies at little cost. Rapid dissemination of ideas and creations followed. In a way, the Internet is nothing more than a modern printing press. Same stuff, just faster.
What Can I Copyright?
Copyrights protect creative works that are fixed in some tangible medium. So you need two things, creative and fixed. Merely printing my name does not get me a copyright. Though fixed in a tangible medium, it is definitely not creative. If you don’t write your creation down you don’t give it unto the world, therefore you don’t deserve protection either.
There is a myth that you need to mark your works. That circle ‘c’ thingie. You do not. Once your work is fixed, it is protected. So taking something from someone is not justified because you don’t see the circle ‘c’ thingie. This also means that a brand should respect everything they consume from their fans and users. That using that material in other ways should be done legally.
Social Media Doesn’t Change This, It Only Explodes It
Social media is tangible, and postings are fixings. Therefore, your posting on social media is a copyrighted work, as long as its creative. That is why there is language in every term of service regarding you giving up some rights over your work to the platform. Because you have created something that is valuable. To yourself, to the work and to the platform. The only thing that changes with social media is that the fixing is occurring so much quicker and with little barrier to entry.
The Rights That You Get With a Copyright
As a holder of some copyright, you get many exclusive rights. When you are getting something from your users to re-use their content, you need to be aware of what they can give you and what you want. These include:
- Produce copies and reproductions. This includes reproducing it on a website, or platform, and delivering it to other users
- Export the work around the world
- Create derivative works, that is, adapt the original work. Taking content, and adding say a smiley face to it, for instance.
- Perform or display the work. Again, you receive content from a user and put it up in your community. That is displaying.
Exclusive means exclusive. If you do not receive a license to these rights, the copyright holder can assert their ownership.
Social Media Doesn’t Change Anything
Maybe saying it again will allow it to sink in. There are many, and there have been many efforts to change copyright law. Proponents say that we need to change the law to catch up with the new technology. Perhaps. But for today, the law is what it has been. The changes that have been made have not made it easier for brands and you to operate. In fact, it has actually made it much harder.
Copyright Exceptions – Doing What’s Fair
Ok, you understand where the rights come from, and you even know some of the rights that you do have. And you also know what rights your users have. So how can you use this stuff. If you are a commercial interest and you intend to use someone else’s creative work, get their permission. The biggest exception is educational. If you are a school, you get can away with a lot more than Microsoft can. Their use is fair, so to speak. Your’s is not. What is this fair use, anyway.
Everyone talks about fair use. I can use something because it’s fair use. If lawyers had a dollar every time they heard this, they would have lots of dollars. The dirty little secret is not that fair use doesn’t exist. The secret is that you can’t say it and make it true. You can argue that your use is fair. Your lawyer can even agree with you and expand your argument. What you can’t do is say it is. Only a judge can. That actually requires you to go to court after someone has said you have stolen their stuff. FAIR USE IS ONLY A DEFENSE.
Copyrights Are Hard, But They Are Simple
Copyright law is hard. Just look at all the court decisions on copyright. How to use other’s creations is actually simple though. Be Respectful. Don’t use without permission (explicit or implicit). If you think you have a fair use defense, consult a lawyer. If you are a company and engaging in commercial interests, don’t rely on this too much. I think the arguments can be made, but let your lawyers do it.
Being respectful means putting yourself in the shoes of your user. Would they be ok with your use? Would they be offended by it? Don’t cloak yourself in the myth that they will never see it, so they won’t care. Do the right thing by your users. That includes using their stuff.
Why Should You Worry About All This
Almost every piece of content you receive from your users that you display back to the community can be considered a copyrighted work. Tweets to your brands Twitter account also are copyrighted works. The posts on your brand’s Facebook Fan Page? You guessed it. Copyrighted work. If you do not have a grounding in this area, find a lawyer to sit down and explain it to you. Buy them lunch or coffee. Understand it more and you will be a better partner and a better brand.