The relationship between copyright law and social media varies in the various legal systems: the major ones are the US and the EU system. This article is, therefore, oriented in underlying which are the common features of copyright law, on the one hand, and, on the other, to highlight the differences in procedures and application of copyright rights, mainly in court decisions.
Copyright law protects intangible assets such as intellectual and original creations of human minds.
Being copyright not subject to registration, means that the right is born with the creation itself. However, this can create problems especially in the field of social media. If a user posts presumptively copyrighted content to a social media site that permits reuse, downloading or embedding, it seems logical to conclude that the owner has either abandoned a genuine ownership claim or has granted an implied license to third parties to republish that content. But this may not always be the case. The difficulty of copyright lies, in fact, in these grey areas concerning the burden of proof when the fatherhood of a certain work is at stake and the liability for wrongful misuse, as a consequence.
For these reasons, copyright is often bound to some limitations and exceptions due to the need to balance the right beneath it, with freedom of expression, information and education, just to cite few of them.
It is here that the Civil and Common law systems part ways: in the US system, exists an elastic clause called 'fair use', while the civil law approach is based on closed number of exceptions, established by the law.
In the US, copyright protects original works of authorship and comes with a host of exclusive rights, that allow the owner to do or authorise a number of actions and exercise substantial control over his or her work. The general rule is that of a ban to use a copyrighted work without express authorisation from the owner; however, there is one significant legal construct that allows millions of people every day to see and share contents online.
It is fair use. Fair use differs from free use: fair use is a legal exception to the exclusive rights an owner has for his or her copyrighted work. The aim is to protect the public interest, while not endangering (too much) one’s rights.
The purpose of this Fair Use Doctrine, consequently, is to allow for limited and reasonable uses that do not interfere with owners’ rights, whilst simultaneously allowing these copyrighted works to be used without permission, for the benefit of the public. However, there are limits and only a court has the final word on the matter.
Title 17, Section 107 of the US Code states: In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.
It all seems quite crystal clear but application is not that easy. As the US Copyright Office states “The distinction between what is fair use and what is infringement in a particular case, will not always be clear or easily defined. But one thing is certain", the Copyright Office explains, “Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”
In addition to the unclear framework, an increasing confusion attributed to the proliferation of social media, is to be added to the basket. On these platforms, to share or embed or link is done on a regular basis, without any second thoughts. Yet, when “borrowing” or “sharing” media without permission involves the making of money, lawsuits arise.
An iconic case is that of Michelle Phan. This fashion-adviser youtuber, facing millions of dollars of penalties for using copyrighted music in her informational videos, has now settled with the dance label Ultra Records, though the terms of the agreement are not known up until now. Even if her YouTube videos are educational for those interested in fashion, she made and still makes a lot of profit from the ads on her channel – $5 million only last year. And that is business generated, in part, by using copyrighted works. The risks of using content produced by others, especially if for personal gain, can be costly.
Conversely, in the EU, being all EU states signatories of international Conventions and Treaties such as the Berne Convention and TRIPS, copyright law of the European Union cannot be seen independently from international law. However, there is no general principle for the use of copyright-protected material comparable to the fair use principle in the US. It is still controversial whether such an American-style principle would be an appropriate. The majority of copyright experts in the EU, believes that the introduction of a new general principle such as the fair use one is not needed and also not realistic. Rather, they believe that the tradition of limitations and exceptions leaves enough space for European copyright law to be more flexible and adaptable to new challenges mainly caused by the development of information and communication technology. However, the still binding 2001 EU InfoSocDirective, with its exhaustive set of limitations, has proven to be a major barrier to a modern and flexible copyright. This is particularly true for the rapidly changing situation caused by the wide spreading use of social media.
In this framework, if, on the one hand, one would assume that copyright in Europe is much more restrictive and the rights attached to it executed in a narrow-interpreted way, as far as legislation goes, on the other hand, some winds of change can be noticed in upcoming court decisions. An example is the decision by Tribunale di Roma that, in last June 2015, granted for the first time moral and economic rights to a minor whose photos had been used by an Italian newspaper: the journalist had taken them from Facebook and used them freely, without any reference to their origin nor the minor consent.
The court stated that the photos were protected by the Italian Copyright Law 633/1941, namely by art 8, and went in detail in analysing the Terms of Service of Facebook.
It assessed that when a user uploads a photo, what happens is simply a transmission of a non-exclusive license to Facebook and the social networks connected to it, but not, whatsoever, the complete transmission of all the rights attached to the content posted. This means that other users can access those images or other contents on Facebook and share them in the same Facebook platform or other social media connected to Facebook, but they are forbidden from taking those IP contents and publish them outside the Facebook network, without the consensus of the author.
The Court went on arguing that the mere upload of a content by a user does not make him/her automatically the author of it; it is a presumption about it, if it is not proven the contrary and accordingly, there is a reversion of the burden of proof; hence the alleged wrongful user, that had taken that content and used it, has to prove that the photo or video or whatever content, was not covered by copyright.
In application, these rules are difficult to harmonise with the inherently shared nature of social media User-Generated Content (UGC). It would be proper for the law (especially EU law) to adjust quickly enough to technology so that fairuse could be articulated by the courts. If to this one adds the fact that most of the social media users are not professionals of the field, the legal uncertainty increases and some measures must be taken.
A fair, balanced copyright will remain one of the major challenges for contemporary EU society: it is the basis for the democratic enlightened participation of everyone in all aspects of public and political life in the wide-spreading environment of social media. Perhaps to take the lead given by the US Government and follow the guidelines of the US Copyright Office elaborating them for the EU framework, would diminish these uncertainties and clear all the doubts about the application of such an essential tool as copyright in the present and future reality created by social media.
Hargreaves, I. Digital Opportunity - A review of Intellectual Property and Growth, UK Intellectual Property Office, May 2011.
Hugenholtz, P.B. and Senftleben, M. Fair Use in Europe: In Search of Flexibilities, November 2011
Lenz v. Universal Music Corp.,801 F.3d 1126, Nos. 13-16106, 13-16107 (9th Cir. 2015).
 As such defined by the US Copyright Office, http://www.copyright.gov/help/faq/definitions.html
 in Lenz v. Universal Music Corp.,801 F.3d 1126, Nos. 13-16106, 13-16107 (9th Cir. 2015).
 US Copyright Office, Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code, Circular 92, § 301
 Hugenholtz, P.B. and Senftleben, M. Fair Use in Europe: In Search of Flexibilities, November 2011.
 Hargreaves, I. Digital Opportunity - A review of Intellectual Property and Growth, UK Intellectual Property Office, May 2011.
 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society
 Sent n. 12076/2015, Tribunale Ordinario di Roma, Sezione specializzata in materia di impresa.