I made a video for my intellectual property (IP) class that explains the lessons in one of my most popular posts, There is no copyright in ideas.
If you missed that post, or if you just prefer videos, you can check it out here: (it’s only 2 mins long)
So far, we’ve discussed what copyright infringement is, exceptions to copyright infringement, and how a copyright owner can give you permission to do something that would otherwise be an infringement.
Perhaps you’ve noticed, though, that there’s a lot of content online which doesn’t seem to be permitted or under an exception. People share content all the time just for fun – photos on Pinterest or Instagram, memes on Tumblr, videos on Facebook or YouTube. Are these all unlawful? The scope of probable infringement seems, at times, huge.
Many of these actions are understood by copyright lawyers to be tolerated use. “Tolerated use” is a term coined by Tim Wu, a law professor at Columbia University in New York. It means, basically, uses which are technically infringing but which are tolerated by copyright owners for various reasons – sometimes because they don’t want to alienate their fan-base, but usually because it is too difficult and expensive to find the people committing copyright infringement and bring legal action against them.
‘Who says the mix tape is dead?’ by Simon Williams, licensed under CC: BY-NC-ND
Historically, many actions that we consider “normal” fell within a kind of “zone of tolerated use” because, though technically infringing, they were done within the privacy of our own homes and were not detectable by copyright owners. Things like: making a mix-tape for a crush or burning a CD for a friend. Taping movies off the television to build a home library or copying a picture to hang on your wall. All acts of copyright reproduction and technically infringing, but unlikely to attract the attention of a copyright owner.
These days, many of our copying and sharing activities have moved online and, consequently, the zone of tolerated use may be shrinking. Now, software makes it easier to digitally “lock” creative content to prevent copying, or to track where content ends up. Technology is starting to make it possible for copyright owners to know when people are copying and sharing, in ways they never did before. I don’t yet know what this means for the ways in which we use the internet, now or in the future, but I do think it’s useful to be aware of the reach and bounds of copyright, and which uses are permitted and which are merely tolerated.
Seen this recently?
I’m sure many of you have. Heck, some of you may have shared it. It’s the latest iteration of these declarations that seem to pop up on Facebook every now and again. They stem from a fear that Facebook will take ownership of the things that we post or, at least in this version, that Facebook will take things we share only with our friends under our privacy settings and make them public.
Fear not, friends. This statement is unnecessary and a hoax. Don’t even get me started on how much is wrong with it. For starters, things you post publicly on social media are NOT confidential information. But I’ll tell you about private and confidential information some other day.
For now, I want to tell you properly what rights Facebook takes in your posts and what it can and can’t do with them. I’m getting this information from Facebook’s Terms of Use – this is the contract you agree to when you sign up to Facebook. Bear in mind that the terms change occasionally, so what I’m telling you here is current as at 24 January 2015. If you want to check for updates, you can access the Terms of Use here.
(1) You own all the content and information you post to Facebook…
…and you control how it is shared through your privacy settings. BUT you do give Facebook a non-exclusive licence to use your content in connection to Facebook. This licence is necessary for Facebook to function. Without this permission it could not display the content you post to your friends, for example. Facebook is only permitted to display your content in line with the privacy settings that you choose, so if you select ‘friends only’ when you post a status, Facebook cannot share it publicly. The licence ends when you delete your content EXCEPT where others have shared your content on their page, in which case the content continues to be available on their page unless and until they also delete it.
(2) When you sign up to Facebook you agree to use Facebook in a “safe” way…
…which means no bullying or harassment, no hate speech, and nothing unlawful or discriminatory. You also agree not to infringe other people’s copyright. Facebook has the right to remove any content it believes violates these terms.
(Remember – just because you post a picture to Facebook does not make it yours under copyright, unless you created the picture or took the photograph. You might be posting other people’s content, so take care.)
(3) For users outside of the United States…
…you consent to having your personal data transferred to and processed in the United States. (Different rules apply for German citizens). This may affect your privacy interests so far as the U.S. Government (and the NSA) is concerned.
(Want to read more about your privacy rights on Facebook? That’s contained in Facebook’s Data Use Policy. It’s designed to be easy to read, so don’t be shy. But if you still find it too dense to read, let me know in the comments and I’ll do a follow-up post just about Facebook’s privacy policy.)
Remember: Your relationship with Facebook is governed by the terms of the contract you agree to by using Facebook. Those terms are contained in Facebook’s Terms of Use. Nothing that you post in a status update will change them.
I’ve only provided a very brief summary of the relevant terms of use here. If you have any more specific queries, hit me up in the comments and I’ll check it out for you. In coming weeks, I’ll read and summarise the Terms of Use for Instagram, Twitter and other common platforms for you as well.