Navigating copyright perils in this age of social media

(Written by Rachel Woo)

In Singapore, as well as in many other countries, there is automatic copyright protection. This is due to Article 5(2) of the Berne Convention which generally provides that the enjoyment of copyright “shall not be subject to any formality”. As such, there is no need for registration of copyright for parties to enjoy protection conferred by copyright. Nonetheless, there are some countries that have a voluntary registration/notification system for copyright. In the United States in particular, registration is required in order to be able to sue for copyright infringement.

Social media and messaging platforms have become ubiquitous in today’s internet-driven world. To capitalize on the surging growth in target audience traffic on such platforms, businesses have taken to embracing social media in their marketing strategies. With the increasing rivalry for customers online, copyright can provide businesses with a form of security against copycats and ultimately a competitive edge in the volatile global marketplace.

Given this global nature of social media, is there international protection of copyright? In terms of the scope of copyright protection, it is territorial and is limited to the country in which the work was first published. For instance, if an artist posts a copy of his work on social media in Singapore, the work would be copyright-protected in Singapore. The international nature of social media might seem problematic, since works published online become accessible to a global audience. Nonetheless, copyrighted works are afforded an extended scope protection covering countries which are parties to the Berne Convention and/or members of the World Trade Organisation (WTO). As a result of the Berne Convention, a work published in a qualifying country is afforded the same protection in other qualifying countries, as if the work was published in those other countries.

Copyright protection has never been more relevant, especially because internet users (whether copyright owners or not) now have access to resources and tools that optimise the utilisation and exploitation of social media for commercial gain, such as post templates. Additionally, practices such as freebooting or re-posting have become more rampant, and this poses a frustrating problem to content creators who have to contend with repeated plagiarism that seems to spiral out of control.

To address concerns regarding the intellectual property rights position of content creators in cyberspace, many questions arise. When a creator uses resources found online in creating posts, who does the copyright lie with? Will there be copyright infringement if the same concept behind the sourced work is used? What have social media platforms done to help creators mitigate their losses resulting from freebooting or re-posting? What about the inspired work of creators – is credit due to those who inspired the work?

Usage of post templates

Generally, social media posts may include literary works (e.g., stories), artistic works (e.g., artwork, photographs), videos and compilations thereof which could be the subject of valid and subsisting copyright protection. In our fast-moving society, the current generation of consumers puts a premium on convenience in terms of content delivery as well as product/service acquisition. As such, content creators have become compelled to use social media as a marketing platform for their business, and to pay greater attention to the linguistics, aesthetics and concepts of their posts. In recognition of this, online platforms that provide readily available social media post templates, being compilations containing copyrighted works, have become more commonplace. One such platform, called Canva, provides post templates for use without the need to pay for copyright licensing fees or royalties.

Such platforms often offer “premium” services to template users involving subscription payments covering licensing fees to use any templates that are not royalty-free. While the copyright in the compilation of copyrighted works of which such a template consists remains with the template’s creator, the copyright in a posted template, being a template user’s original compilation incorporating the template user’s content, would belong to the template user.

As such, content creators who employ the use of post templates are generally free to post the end-products of the post templates they use. However, care must still be taken to observe and abide by the applicable terms and conditions governing the use of such templates.

Freebooting

As more content is being put online, there has been an increasing occurrence of freebooting (the act of re-posting original content of others online for personal gain, often without crediting, or obtaining permission from, the content creators). Freebooters may claim that they re-post with the intention of sharing and promoting the work of the creators, but creators have repeatedly condemned such practices, especially in cases where the re-postings obtain more views, likes and shares than the original posts. As creators have moved towards using social media as a means of self-promotion, re-posts that do not credit them or are done without their permission could effectively minimise the efficacy of their original posts. As such, for the creators and content owners such as artists, small businesses and even influencers, for whom views, likes and shares on social media are essential for effective marketing, freebooting tends to do more harm than good.

Social media platforms incorporate features that allow content creators to submit reports or complaints of copyright infringement, with the requirement that account holders provide proof that they indeed own the copyright in the work they allege to have been infringed by unauthorized re-posting on the platforms. A successful submission would result in the takedown of the re-posting complained of. Unfortunately, the sheer number of re-posting accounts, coupled with the ease with which such accounts can be created or deleted, makes it extremely tedious and impractical for creators to keep track of every infringing re-posting of their copyrighted work across multiple platforms. Additionally, social media platforms can be slow to investigate and conclude copyright infringement complaints submitted. Such inefficiency has led to some creators resorting to attempts to tackle the threats posed by re-posting account holders themselves through pre-emptive and preventive steps, such as disabling the sharing/downloading functions via platform account settings (if possible), adding watermarks to their work, and imposing re-posting conditions (permission and accreditation requirements).

However, there are complications that may be encountered with taking these self-help measures. For instance, watermarked works can be a source of frustration for content creators: apart from feeling that watermarking ruins the aesthetic appeal of their work, they may also think that it distracts from the message their work is intended to convey. In addition, a watermark remains vulnerable to being easily removed by editing software, and a re-poster can also modify the content in a way that hides watermarks within long captions, thereby rendering them virtually unnoticeable.

Another way in which content creators have tried to deal with re-posters head-on is to warn them that the re-posts infringe their copyright and request that they be deleted. While this self-help route might achieve some degree of success, it could also draw rebuffs from re-posters who refuse to oblige.

Generally, content creators would tend to submit copyright infringement complaints to social media platforms after they have exhausted all other ways of dealing with the re-posters. Perhaps this trend might change with time, with social media platforms generally appearing to be taking steps to gradually improve their systems and processes for reviewing copyright infringement complaints.

Inspired work

At the same time, it should be said that copyright swings both ways, and content creators posting on social media should be conscious and careful with regard to what they are posting. This would include the question of whether credit must be given, in the case where a posting was inspired by the work of someone else. With the unending influx of social media posts, there will undoubtedly be overlaps in concepts and ideas behind the posts. In this regard, it should be emphasised that copyright does not protect an idea; it only protects the tangible expression or manifestation of the idea in the work itself. In other words, the idea itself must be put down into a material form for copyright to attach to it. As such, where the work that has been posted is based on the same concept, the copyright would subsist in the work itself and not the idea behind the creation of the work. As a result, being inspired by the idea behind a work would not necessarily cause the resulting inspired work to be an infringement of copyright. However, if the degree of inspiration borders on a re-creation of the style, format and composition of the work, content creators may themselves be at risk of a copyright claim against them. As such a peril would be detrimental for creators to have to face, what with the potential financial and reputational risks as well as opportunity costs associated with tackling a copyright infringement attack, it may generally be advisable to avoid such risks by crediting the author/copyright owner of the inspiring work, as a basic courtesy.

In conclusion, from the above discourse, which does not attempt to exhaustively cover the myriad legal complexities of tackling issues relating to the protection and enforcement of copyright in cyberspace, it is clear that navigating copyright perils in this age of social media is by no means a straightforward task for content creators. It then goes without saying that professional copyright advice may come in handy at some point in time, as complicated situations can (and do) arise.