A Tweet too far? User-generated content on Twitter

Use of content posted on the Internet without the author’s consent can constitute an infringement of copyright. A US Court ruled this way in 2013, deciding that the “Agence France Presse” (a French press office) and Getty Images were liable for copyright infringement because of their use of a photographer’s images without his authorisation. The photographer was awarded $1.2 million in damages.

This case, and the level of fine involved, raises the question of the protection of contents displayed on Twitter and of the rules applicable to their use. We look at this issue with a focus on how this is provided for under French law.

Can a Tweet be protected by French copyright law?

Under French law, a work needs to be original to be protected by copyright. This means that the work must express its author’s personality. This is typically easy to establish when it comes to images, so a picture posted to Twitter is likely to be protected. However, it will be more difficult to satisfy this rule in 140 characters (which is a tweet’s maximum length). In fact, even though in the Infopaq case (Infopaq International A/S -v- Danske Dagblades Forening, Case C‑5/08), the European Court of Justice expressly contemplated a mere 11 words potentially attracting copyright, most tweets will not be protectable, where for example they describe common news or situations, using identical or similar expressions.

To be protected by copyright, the tweet author will need to make choices of expressions, to arrange the facts or present them in his/her unique way, manifesting his/her own personality. It is this special expression of facts which will be protected and not simply the idea conveyed: an author cannot forbid other users to tweet on the same facts.

If these conditions can be satisfied, enabling a specific tweet to be protected against copyright, what protection does this give the author against infringement by others?

Twitter rules regarding user-generated content

The contractual rules governing Twitter users’ contents will be defined by the contract reached between them; Twitter’s terms of use. Those terms must be expressly accepted by French consumers to be binding upon them, as for example by a ticked box mechanism.

Twitter’s position is quite clear. Article 5 of its terms of use states that users retain their rights to any content they submit, and only grant Twitter a worldwide non-exclusive and royalty free license to use, reproduce, adapt or modify the content in all media. Twitter does not claim any intellectual property right over its users’ contents; nor does it have the right to authorise other users to copy each other’s tweets.

This license (and more generally Twitter terms of use) is stated to be governed by US law. However, as the contract is concluded with consumers and as under French law infringement is a criminal offence, if any infringement were committed in France, the victim may have a remedy under French law notwithstanding any contractual rights. It is important to be aware in this respect that the two legal systems provide for different rules; French law does not, for example, recognize the “fair use” exceptions which are so important in US copyright.

French regulation regarding the use of third parties’ content

The reproduction or use of a work without the author’s authorization constitutes an infringement under French law, except if a copyright specific exception, which are of narrow interpretation, applies. In fact, it is likely that the conditions for those exceptions would not be met for a tweet. French law does provide for an exemption for brief quotations of a work which is justified by the critical, polemic, educational, scientific or informatory nature of the work in which they are incorporated. However, given the very short length of a tweet, it is unlikely that the reproduction of some or all of the characters used in a tweet would be considered a legitimate quote. If a tweet does qualify for protection under copyright, unauthorised reproduction of it will constitute infringement of the author’s moral and economic rights.

Practical steps

Even where an author does believe that their tweet would attract copyright, and that copyright has been infringed, they may have little appetite to pursue expensive lengthy court processes. However, Twitter provides on its website for a special form to report copyright infringements. This “take down” mechanism has already been widely used, as for example in the case of humorist Olga Lexell. Olga Lexell filed a request to have tweets removed as users were reusing her humorous tweets without accreditation. Doing so, she calimed, was an infringement of her moral rights, as the right to be named as the author of a work is an enforceable author right under French law.

The question of infringement of economic author rights has also been raised lately in France. The publishing house, Larousse, published last year a book gathering the best posts on the website. The authors of the selected tweets had neither been informed nor had consented to their works’ publication. Facing many protests on the ground of copyright infringement, Larousse decided to stop the book sales. The power of social media may have brought them to decide not to risk a legal confrontation. Indeed, even though legal rights apply it will be rare for anyone accused of infringement to decide to take a stand over their right to copy. As of today, we are not aware of any law suit brought in France on the basis of a tweet infringement.

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