Some weeks ago I was asked to comment on whether tweets are subject to copyright protection. Unsurprisingly, this is a common question that gets asked over and over again, as some of the information online is contradictory and misleading, or refers to other jurisdictions.
Do we have an answer in the UK? Sadly, the question has remained open because there has not been a direct case that deals with the issue, and the lack of litigation creates uncertainty in some people’s minds. The situation is made more complex by the diverse nature of Twitter, a tweet can be text, but it can also be made of pictures, gifs, vines, and even embedded videos. We’ll deal with these separately.
Original literary works are subject to copyright protection. The question is then whether a text consisting of 140 characters or less (or is it “140 characters or fewer”?) is worthy of protection. According to some US blogs, the answer is no (because, well, because he says so). The answer in Europe and the UK is less straightforward, but there is a good chance in my opinion (and that of some commentators) that a large number of tweets are given copyright protection if they meet the existing standards.
European copyright law does not have a minimal limit on what constitutes a protected copyright work. For example, the EU Copyright Directive 2001/29/EC makes it clear in Art 2 that the reproduction “in whole or in part” of a work is to be considered an infringement, not stating a minimum amount for what is “in whole or in part”. It has generally been accepted in case law that the copying of a part of a work has to be substantial in order to infringe, but similarly this is a very subjective test, as what makes up a substantial element of the work is left for the court to decide.
The broad language in Art 2 led to the Court of Justice of the European Union to establish a very minimal definition for what is an original work. In Infopaq (Case C-5/08) the CJEU says that a work is original if it is the author’s “own intellectual creation”. They say:
“Copyright within the meaning of Article 2(a) of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author’s own intellectual creation. As regards the parts of a work, they are protected by copyright since, as such, they share the originality of the whole work. The various parts of a work thus enjoy protection under that provision, provided that they contain elements which are the expression of the intellectual creation of the author of the work. Given the requirement of a broad interpretation of the scope of the protection conferred by Article 2 of that directive, the possibility may not be ruled out that certain isolated sentences, or even certain parts of sentences in the text in question, may be suitable for conveying to the reader the originality of a publication such as a newspaper article, by communicating to that reader an element which is, in itself, the expression of the intellectual creation of the author of that article. Such sentences or parts of sentences are, therefore, liable to come within the scope of the protection provided for in Article 2(a) of that directive.”
In the Infopaq case, the Court declared that the reproduction of 11 words was enough to show infringement. It is therefore safe to assume that European courts will consider tweets to be original works if they “contain elements which are the expression of the intellectual creation of the author of the work”. A joke, a silly comment, a short rant, maybe even a boring complaint about lunch… all will be protected if they are deemed to meet the standard.
Conversely, Infopaq might make it more difficult to protect a tweet that does not have an expression of the intellectual creation of the author. I often tweet article titles and links, I would be very surprised if these had copyright. Similarly, posts that are filled with hashtags, and even #FollowFriday lists of users would be unlikely to pass the threshold of protection.
Images, videos, vines
Photographs are artistic works (irrespective of quality). If they are an original work, and if it is assumed that they would have copyright in any other medium, then their publication through Twitter or Instagram should be irrelevant to the protection given to them. Similarly, videos, gifs and vines should also be protected if they have protection in the first place.
Yes, I am aware that this means that selfies are protected by copyright. And no, I am not going to talk again about the monkey selfie.
But if a tweet is original? What constitutes infringement?
Initially, if a tweet is protected by copyright, then its unauthorised reproduction “in whole or in part” would be copyright infringement. If I write a joke and it is copied in whole by someone else, then in theory I could sue for copyright infringement. But what about retweets? This is slightly trickier, as it is an important feature of twitter that makes the service richer. My own solution (and I am happy to be proven wrong here) is that any public account gives other users an implied licence to retweet the work. But what about non-automatic retweets, such as using the format: RT @technollama “I for one welcome our new 3D-printed Bitcoin drone overlords #yeswearethatold”. In my opinion, this would also be fine as long as it is clearly attributed, but I have no legal basis for the opinion other than it is common practice in the medium.
Copying someone else’s image, gif, vine or video and tweeting it would in theory be an infringement, but this being the Internet it is practically impossible that it would be enforced directly, most memes out there seem to operate in a copyright-free environment anyway. Twitter however allows for content to be removed if it is considered infringing in their terms of service.
Animated gifs are usually infringing, but this is another discussion, as I am yet to see a single attempt by an owner to enforce their rights against a gif.
Vines are more controversial. The Premier League has threatened that it will act to remove goal vines from social media. The question of whether a 6 second video recording of a goal is in itself infringing is the subject of a future post, but I think that if we read copyright law and case law strictly, then I am afraid that goal vines are indeed an infringement.
This post is not intended to close the debate. I am perfectly aware that US Copyright law deals with originality in very different ways, and I truly recommend this article by Connor Moran comparing the US and EU approaches to short works. However, it is my firm belief that a large number of tweets in Europe are protected by copyright, and it is only a matter of time until this is tested in a case.
By the way, my tweets are licensed under a CC licence, so feel free to reproduce them as you see fit.