# **Corinne Tan** Regulating Content on Social Media

**Copyright, Terms of Service and Technological Features**

Regulating

Content

 on

Social

Media

**Corinne Tan**

Cover design: Jason Anscomb

'This book makes an important contribution to the field of social media and copyright. It tackles the real issue of how social media is designed to encourage users to engage in generative practices, in a sense effectively "seducing" users into practices that involve misuse or infringement of

'This timely and accessible book examines the regulation of contentgenerative activities across five popular social media platforms.... Its indepth, critical and comparative analysis of the platforms' growing efforts to align terms of service and technological features with copyright law should be of great interest to anyone studying the interplay of law and

**How are users influenced by social media platforms when they generate content, and does this influence affect users' compliance** 

These are pressing questions in today's internet age, and *Regulating Content on Social Media* answers them by analysing how the behaviours of social media users are regulated from a copyright perspective. Corinne Tan, an internet governance specialist, compares copyright laws on selected social media platforms, namely Facebook, Pinterest, YouTube, Twitter and Wikipedia, with other regulatory factors such as the terms of service and the technological features of each platform. This comparison enables her to explore how each platform affects the role copyright laws play in securing compliance from their users. Through a case study detailing the contentgenerative activities undertaken by a hypothetical user named Jane Doe, as well as drawing from empirical studies, the book argues that – in spite of copyright's purported regulation of certain behaviours – users are 'nudged' by the social media platforms themselves to behave in ways that may be

**Corinne Tan** holds a PhD and LLM from the Melbourne Law School, as well as a LLB from the National University of Singapore. She is an internet governance, intellectual property and media law scholar and has

**– Melissa de Zwart, Dean of Law, Adelaide Law School**

**– Peter K. Yu, Director of the Center for Law and Intellectual Property, Texas A&M University**

copyright, whilst simultaneously normalising such practices.'

new media.'

**with copyright laws?**

inconsistent with copyright laws.

published widely in international law journals.

# Regulating Content on Social Media

# Regulating Content on Social Media

*Copyright, Terms of Service and Technological Features*

Corinne Tan

First published in 2018 by UCL Press University College London Gower Street London WC1E 6BT

Available to download free: www.ucl.ac.uk/ucl-press

Text © Corinne Tan, 2018 Images © Corinne Tan, 2018

Corinne Tan has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as author of this work.

A CIP catalogue record for this book is available from The British Library.

This book is published under a Creative Commons 4.0 International license (CC BY 4.0). This license allows you to share, copy, distribute and transmit the work; to adapt the work and to make commercial use of the work providing attribution is made to the authors (but not in any way that suggests that they endorse you or your use of the work). Attribution should include the following information:

Tan, C. 2018. *Regulating Content on Social Media: Copyright, Terms of Service and Technological Features*. London: UCL Press. DOI: https://doi.org/10.14324/ 111.9781787351714

Further details about Creative Commons licenses are available at http://creativecommons.org/licenses/

ISBN: 978–1–78735–173–8 (Hbk.) ISBN: 978–1–78735–172–1 (Pbk.) ISBN: 978–1–78735–171–4 (PDF) ISBN: 978–1–78735–174–5 (epub) ISBN: 978–1–78735–175–2 (mobi) ISBN: 978–1–78735–176–9 (html) DOI: https://doi.org/10.14324/111.9781787351714

### Prologue

In this book I analyse how the content-generative behaviours of social media users are regulated from a copyright perspective. My focus is on comparing copyright laws with other regulatory factors on social media. These factors, being the terms of service and the technological features of social media platforms, can alter the effectiveness of the regulation of content-generative behaviours by copyright laws. In making this assessment, I examine the regulation of such behaviours across five social media platforms, namely Facebook, Pinterest, YouTube, Twitter and Wikipedia. Together these popular platforms on which users generate content serve as a good sample for my purpose.

In particular, I consider the application of copyright laws to various uses on social media and the ways in which this application is aligned with the terms of service and the technological features of social media platforms. I have chosen to examine the terms of service and the technological features as they constitute the points of contact between users and social media platforms which can be readily surveyed.

I have two reasons for taking this approach. The primary reason relates to the dearth of in-depth discussions of how specific social media platforms affect the role that laws, including copyright laws, play in securing compliance from their users. The examination of the application of the terms of service and the influence of the technological features on users' content-generative behaviours is an attempt to address this. The second reason is to stimulate more critical reflections on how laws should develop to take into account the influence of social media platforms on user behaviours, through reform that gives users more leeway for the activities in which they engage. This is crucial as the platforms are becoming increasingly ubiquitous. With this book I will demonstrate how the regulation of users' content-generative behaviours by copyright laws, the terms of service and the technological features can be analysed in a structured way, even in a space as random as social media.

In this respect I will refer to the copyright laws of three jurisdictions – the United States, the United Kingdom and Australia – as well as to the terms of service and the technological features of the five social media platforms. I will also use a case study detailing the content-generative activities undertaken by a hypothetical user named Jane Doe and other users on the relevant social media platforms. This provides an anchor around which to conduct specific discussions on how copyright laws and the other two factors can regulate users' content-generative behaviours. Finally, I draw further from earlier empirical studies to support the arguments I will make in this book.

### Acknowledgements

This book began life as a doctoral thesis undertaken at the Melbourne Law School. I owe a debt of gratitude in conceptualising my research to my supervisors, Megan Richardson, Sam Ricketson and Graeme Austin, who have patiently guided me throughout the various stages of my research. Without their incisive comments, unwavering dedication and encouragement, I would not have overcome the hurdles in completing my research, let alone this book.

Many others have contributed to this book along the way. I am thankful to have the support, resources and stimulating conversations I needed to complete the book as a visiting scholar at the Centre for Media and Communications Law at the Law School from April to June 2017. Thank you also to the colleagues and friends I met at the Law School, who supported me in various ways during this process. In particular, I would like to thank Adrienne Stone, Andrew Christie, Antje Missbach, Jason Bosland, Matthew Harding, Natalia Jevglevskaja and Rheny Pulungan. I am grateful for other friends outside the Law School such as Burton Ong, Candice Tan, Dorothy Ang, Mehmet Gurkan, Michelle Nai, Rena Tan, Yanni Tan and Wong Shiau Ching, who have kept me going with their advice, good humour and friendship throughout.

Finally, I would like to express my deepest appreciation to my family. To my dearest Kapilesh Taneja: Words cannot express my gratitude for having a partner like you. You are the most 'leaned in' partner any girl can dream of – you tirelessly took over more than your fair share of household duties. Thank you for fuelling my dream and for adopting it as your own. To my mother- and father-in-law: Thank you for your sacrifice in coming over to support me as a first-time mother while I worked on this book – I am forever in your debt. To my dearest son Keyan: Thank you for teaching me the value of time management, and for being an ongoing reminder to be present wherever I am.

### Contents



### List of tables

newgenprepdf


## Introduction

### I. Regulation on social media

In this book, I analyse how the content-generative behaviours of social media users are regulated from a copyright perspective. My focus is on comparing copyright laws with other regulatory factors on social media. These factors, being the terms of service and the technological features of social media platforms, can operate to alter the effectiveness of the regulation of content-generative behaviours by copyright laws. In leading up to this assessment, I examine the regulation of such behaviours across five social media platforms – namely Facebook, Pinterest, YouTube, Twitter and Wikipedia – by copyright laws, the terms of service and the technological features. Choosing to do so allows me to confine my analysis of a law's application to the diverse activities occurring on social media in a tangible way; it also accommodates a richer analysis of the application of a particular legal regime (ie, copyright laws) to these activities.

The sample of social media platforms I have selected for the book comprises popular platforms1 on which users generate content. Each of these platforms falls under one of the four (out of a total of six) categories of social media under Kaplan and Haenlein's classification system – namely social networking sites, content communities, blogs and collaborative projects.2 This gives me the opportunity to scrutinise, at a micro-level, how effectively copyright laws regulate users' contentgenerative behaviours on the chosen social media platforms.

The importance of studying how user behaviours are regulated on social media arises from the fact that the predominant experiences of users on the internet are increasingly those on social media platforms. Internet users are found to spend more time on social media than before.3 In spite of the proliferative use of social media platforms, as well as social media's unique characteristics and business models, a lack of specific consideration has been given to how social media platforms affect the role played by laws – including copyright laws – in securing compliance from their users.

To date, research on the regulation of social media draws mainly from internet governance studies.4 DeNardis and Hackl have highlighted the focus given in internet governance studies to governmental policies and global institutions.5 They have further called for more consideration to be given to the direct policymaking role of private intermediaries and the accompanying phenomenon of the privatisation of human rights.6 According to DeNardis and Hackl, existing scholarship has tended to focus on political transformation on social media, the use of social media for self-representation and the expansion of freedom of expression through social media.7 On the other hand, there is a growing area of inquiry concerned with private information intermediaries such as social media platforms. The ways in which these platforms enact governance via their user policies and design choices8 deserve more attention than they have received to date.

DeNardis and Hackl have also discussed the question of privatised governance *by* social media in their work. Their discussion on the extent to which social media platforms promote or constrain rights has been concerned mainly with three thematic areas relating to free expression. These areas pertain to: firstly, anonymous speech and individual privacy; secondly, the ability to express ideas; and thirdly, technical facilities, or 'affordances', of interoperability and permission-less innovation.9 With this book, I intend to expand our understanding of how social media platforms can alter the effectiveness of the regulation of content-generative behaviours by copyright laws.

Recent controversies have brought the question of governance by social media to the fore.10 In particular – and of topical interest to this book – are the filing of legal actions against Twitter in California for failing to respond to takedown requests in relation to professionally taken photographs,11 Twitter's removal of plagiarised jokes in response to its receipt of takedown notices12 and Richard Prince's sale of artworks incorporating images shared by other users on the Instagram platform.13

In this respect, DeNardis has argued that as content intermediaries such as social media platforms wield great power over the global flow of information, the challenges they pose to individual civil liberties through their privatised forms of governance are escalating.14 She has also noted their direct manipulation of the distribution of content and their facilitation of transactions among users.15 The acknowledgement of the incursion of human rights on social media and the need for user empowerment have spurred further research in these areas.16 While we are increasingly aware that social media platforms influence our behaviours, we often fail to articulate exactly *how* we are so influenced, or 'nudged'.17 In response to these concerns, this book pays attention to the processes by which social media platforms influence the behaviours of users through the specific means of their terms of service and technological features.

As a preliminary matter, it is worth noting that social media platforms have features that distinguish them from cyberspace in general. According to Mayfield, social media embodies five specific characteristics – namely participation, conversation, connectedness, community and openness.18 In short, social media platforms allow users the opportunities to interact with others; enable two-way conversations; facilitate interactive dialogues among users;19 encourage users to reach out to others, communicate with and develop communities; link users with others who share a certain commonality; and ensure that there are relatively few barriers to the accessing of information or the making of comments on social media. Social media platforms have been defined as providing three specific technological facilities, or 'affordances': the intermediation of user-generated content (UGC); the possibility of interactivity among users and direct engagement with content; and the ability for an individual to articulate network connections with other users.20 Other definitions more generally characterise social media platforms by reference to their abilities to exchange information in an interactive manner with dispersed groups of recipients,21 or as applications that allow for UGC.22

Common to these definitions is the recognition that social media platforms diminish the distinction between the amateur and the professional content creator. They comprise 'social' technologies that allow users to create, modify and disseminate content. This is an allowance previously afforded to a small group of content producers who decided which content would be distributed. Social media platforms are thus unique in that they enable users to be both producers and consumers of content.23 Furthermore, they extend the 'dis-intermediating' power of the internet to the masses24 in relation to the creation, modification and dissemination of content. Firstly, in respect of creation, all users, not only professionals,25 are encouraged to create content because it is easy to do so with the technological features made available to them on the platforms. Secondly, in respect of modification, such platforms create interactivity between their content and their users, thereby allowing a range of different forms of modification by readers of content, who go beyond their previously passive roles on the internet to various levels of activity on social media. Thirdly, in respect of dissemination, the extended reach that the platforms have is unprecedented. For instance, when an Australian political commentator decided to share a witty observation on Twitter, her single message reached 149,000 'followers'.26 Moreover, content can be distributed much faster than before, as users experience a new degree of autonomy in cyberspace.27 On this note, Elkin-Koren has observed that the emerging structures of digital production are no longer bilaterally confined to the producer-consumer or author-user relationships. Rather, they constitute a tripartite relationship consisting of the relevant individual user, a wider community of networked users and the facilitating commercial platform.28 This tripartite relationship is especially pronounced on social media, where the content shared by users is easily accessible by a broad community.

Furthermore, social media platforms have facilitated changes in content which is part of a continually evolving discussion, rather than a fixed product.29 Social media platforms effect these changes by lowering the threshold required for user participation through their technologies – even regular unskilled users can now make minor contributions to an overall collaborative work.30 In allowing for these minor contributions,31 users are given the opportunity to experience participation with simple activities32 before moving on to activities requiring greater personal effort and engagement.33 Additionally, most users have social, rather than financial, motivations for creating, modifying and disseminating content. For example, users who contribute entries to the Wikipedia platform do so because of the shared sense of community among users and the desire for reciprocity, among other things.34

Social media platforms have also changed the economics of content creation and distribution. The costs of running these platforms are irrecoverable via the traditional route carved by copyright laws, given that such platforms do not own the content on them under their terms of service and are not the copyright holders.35 Notwithstanding this, revenue is earned usually through the building of value-added services around the content available, such as an advertising or a micropayments licensing system.36 Advertising remains the most common revenue model for social media platforms, where the advertiser pays only when a user clicks on an advertisement.37 Indeed, most social media platforms offer free services to their users and are known to adopt advertiser-supported business models38 that, among other things, sort, aggregate, monetise or otherwise create social and economic value around content.39 Social media platforms can thus increase the revenue they earn by attracting more users to their platforms, so that there will be a correspondingly higher volume of advertising clicks and actions.40

Social media platforms therefore have a strong incentive to grow their audiences. Moreover, network effects, or the effects that the number of users of a service has on the value of that service to others,41 also play a part. Other users will be incentivised to join a social media platform when it expands its user base. This is due to the fact that social media platforms appear to be designed around users' interactions with the content available on such platforms. Thus the probability of a user finding content on a social media platform useful is likely to increase when there are more users contributing to the shared pool of content. Social media platforms want their users to share content with other users in their networks. When there are more users on a network and access to content is effortless, advertisers will be willing to engage the platforms, making them more economically viable.42 In light of the business models adopted by social media platforms and their financial incentive to increase the volume of content shared, the question of governance *by* social media becomes all the more important to address.43 I direct myself, in this book, to answering the consequential question that necessarily arises: how can this influence of social media platforms, as exemplified by their terms of service and technological features, affect users' compliance with copyright laws when they engage in contentgenerative activities?

### II. Regulation of content-generative behaviours from a copyright perspective

Many users on social media are, with startling regularity, engaging in behaviours that could potentially fall within the scope of copyright infringement.44 The ubiquitous employment of social media platforms by users to create, modify and disseminate content has expanded the possibilities of copyright laws applying to the content-generative activities in which users engage. As noted by Wu, a giant 'grey zone' exists in copyright legislation, which includes millions of uses that 'do not fall in a clear category but are often infringing'.45 This grey zone arguably grows larger with the proliferation of social media platforms, and their increasing technological enablement. Moreover, because the sharing of content on social media transcends national borders, the application of laws in these virtual spaces is uncertain.46 The restricted abilities of countries to enforce their legislation, including copyright laws, owing to the sheer volume of content and the de-centralisation of media producers,47 make this uncertainty more acute.

Against this backdrop, recent movements highlight that copyright laws are perceived to be restrictive and in urgent need of reform.48 Scholars have called for reforms to copyright laws, so that they reflect the way users actually behave in their digital interactions.49 This, however, raises the question of whether the law should be adjusted simply because this is the way users behave: in some cases the behaviours may be ones that, as a matter of policy, the law should not acknowledge. At the same time, the rhetoric of the intellectual property industries calling for stronger intellectual property rights comprises terms such as 'innovation', 'wealth creation', 'incentive' and 'creative'50 – precisely the terms that also appear to support the resistance against expanding copyright on social media.

The regularity of technical infringement, the uncertain application of copyright laws and the merging of arguments *for* and *against* copyright make a strong case for copyright reform to look beyond striking a balance between interests that are less distinct. Social media users who are both producers and consumers not only require the incentives51 to create under copyright laws; they also need the freedom to use content to express themselves through copyright exceptions. My inquiry into how the terms of service and the technological features of social media platforms can influence users' content-generative behaviours provides cause to reflect on the extent to which copyright laws actually regulate the ways in which users behave.

On a broader level, understanding the ability of copyright laws to regulate the content-generative behaviours of social media users may prove to be a good springboard upon which the abilities of other laws52 to regulate behaviours on social media can be examined. In this book I choose to take the copyright perspective, and to use copyright laws as a pivot for my analysis. Through surveying the influences that cause dilemmas in one area of law such as copyright, broader lessons may be drawn from the book in relation to other applicable laws on social media. This goes beyond a consideration of how the challenges posed to copyright's effective regulation of content-generative behaviours can be resolved.

If society moves towards the ambient networked computing environment described by Hildebrandt53 – a world in which the impact of technological features on user behaviours is less explicit and visible – decisions may be made instead by an active set of cooperating devices, not by the users themselves. When this happens, users exercise less autonomy in decision-making and are hence more vulnerable to influence. While the copyright regime is *expected* to regulate contentgenerative behaviours on social media, I question the extent to which copyright laws continue to govern the content-generative activities of users in reality. Subjecting users to the risks of copyright infringement on social media may then be tantamount to adopting the copyright view of the universe Litman describes, which does not take the vantage point of these users into account.54 In spite of copyright's purported regulation of content-generative behaviours, I argue that users act in response to 'nudges'.55 These 'nudges', or the influences users face on social media when they generate content, arise from the governance of users' behaviours by social media. In particular, the terms of service and the technological features on social media platforms can affect the awareness and perceptions of copyright laws in users, and so influence such behaviours. This gives rise to the question as to whether it is unfair, in this environment of mixed signals and conflicting expectations, that users continue to be widely exposed to the risks of copyright infringement for the activities they regularly undertake on these platforms.

Studies on social media can be the subject of research from a variety of fields including communications,56 human factors,57 computer science,58 sociology59 and political science.60 The governance of and by social media is a subset of the wider study of internet governance, situated within an even broader realm of internet studies.61 In this book, my aim is to develop a line of inquiry and to extract the arguments resulting from such inquiry, rather than to advance existing theoretical foundations.62 My focus is on the practical implications for users, whose compliance with copyright laws can be affected by social media platforms. Throughout my inquiry I ask and answer questions in a way that acknowledges the multiple influences users face on social media platforms. This ultimately makes a case for future areas of research – whether for copyright reform or relating to the form of contribution such platforms can make towards aligning their terms of service and technological features with copyright laws.

While I am not furnishing neatly packaged solutions in the book, my analysis of the factors regulating content-generative behaviours makes it more comprehensible for users to understand the influences to which they are subject on social media. The book belongs to the field of critical information studies that describes the multidisciplinary confluence of work that focuses on the ways in which information and culture are regulated by their relationships with creativity, commerce and other human affairs.63 The orientation of this field allows researchers to put laws in dialogue with other forces, whether economic, technological, cultural or otherwise. With my inquiry in the book, I offer interested users and regulators a way of considering whether the behaviours encouraged or constrained on social media are in line with laws, whether those of copyright or other laws.

### III. Approach

The scholarship around the regulation of cyberspace serves as a good starting point for my inquiry in this book, notwithstanding that social media platforms warrant separate analyses from those conducted on cyberspace. More than a decade ago the regulation of cyberspace, or cyberlaw, emerged as a new legal domain to be studied.64 Opponents to cyberlaw's emergence argued against its usefulness as a distinct field by claiming that cyberspace, by its very nature, could not be regulated, not even by the government.65 In response, other scholars have contended that cyberlaw is a unique field of study because of the regulation of cyberspace through technological standards, premised on the argument that 'code is the law'.66 Another view might well be that cyberspace is not too different from any other area of human activity to be in need of special study in its own right.

In this book I consider the application of copyright laws to various uses on social media, and explore how this application is aligned with the terms of service and the technological features of the selected social media platforms.67 Where there are inconsistencies between the application of either of the regulatory factors with copyright laws, I argue that they can compromise the effectiveness of copyright laws in regulating content-generative behaviours. I have chosen to examine these two factors as they constitute the points of contact between the social media platforms and their users when the latter generate content on these platforms. While users have to accept the terms of service of such platforms before they use their services,68 the technological features are the interfaces users interact with when they generate content on the platforms.69 Both factors can be readily observed for the purpose of the book and are hence included in my inquiry.

To illustrate more specifically the ways in which the surveyed factors (ie, copyright laws, the terms of service and the technological features) regulate the content-generative behaviours of users, I employ a case study that details the content-generative activities undertaken by a hypothetical user, Jane Doe, and other users on the selected social media platforms. This case study is modelled after the activities of users that can occur on these platforms; it provides an anchor around which the discussions can be conducted. This takes place one activity at a time.

Notwithstanding my attempt in this book to depict the usual content-generative activities that can occur on the five social media platforms, including Facebook, Pinterest, YouTube, Twitter and Wikipedia using the case study, it has its limitations. I can never fully replicate the varied phenomena on social media nor capture the complete range of diverse activities that occur on social media platforms in the book. In addition, the terms of service and the technological features are not static features and will be frequently updated by the platforms. The terms and the features referred to here are those of the platforms as at 7 June 2017. Nevertheless, in trying to compare copyright laws with these other regulatory factors, I have developed a structured way to assess how the effectiveness (or ineffectiveness) of copyright laws in regulating contentgenerative behaviours is affected by such factors on social media.

In my consideration of the application of copyright laws, I will refer to the copyright laws of three jurisdictions – the United States (US), the United Kingdom (UK) and Australia. I will also draw from earlier empirical studies that illuminate users' perspectives and awareness of copyright laws. The US is the country in which the entities operating the social media platforms are registered.70 The copyright laws of the other two common law jurisdictions are referred to in order to illustrate how variations between the copyright laws of these three jurisdictions, in spite of some commonalities, may yield different outcomes when a user considers: firstly, if content is copyright protected; and secondly, if his or her content-generative activity is copyright infringing. Having different laws apply to the questions of subsistence and infringement of copyright,71 given that the generation of content on social media occurs online and cannot be confined geographically, is now a reality – social media users come from all over the world.

### IV. Structure

With this approach in mind, Chapter One sets the foundation upon which I make my arguments in this book. In Chapter One, I discuss the adopted definitions of 'social media', together with those of 'UGC'. I also set out the types of UGC that are included within the scope of the book. In this chapter I explain my reasons for confining the discussion in the book to the contentgenerative activities of users resulting in content across four categories of social media platforms – namely, collaborative projects, blogs, content communities and social networking sites. At the end of the chapter I narrate a case study detailing the content-generative activities of a hypothetical user, Jane Doe, and other users on the selected social media platforms.

In Chapter Two I discuss the copyright subsistence and infringement issues that arise from the application of copyright laws to content-generative activities on social media platforms, and highlight the challenges posed in addressing these issues. I then apply the specific copyright laws of the US, the UK and Australia to the contentgenerative activities of Jane Doe and other users in the case study, in order to illustrate how these issues may be resolved in relation to each activity. This application of copyright laws constitutes the first of four hypothetical scenarios, which allows for the subsequent evaluation of the consistency of the copyright regimes with each of the private regimes (ie, the terms of service and the technological features). Through scenario one, I demonstrate why it is not possible for any regular user of social media to have the requisite understanding of copyright laws to know how they apply to the content-generative activities he or she undertakes. I also show that the application of the copyright laws of the three jurisdictions to the same activities can result in different outcomes being reached on the copyright liabilities of users based in each jurisdiction.

In Chapter Three I examine the standard form contracts entered into by users across the five selected social media platforms, in order to identify the key terms that govern or have implications for the contentgenerative activities of these users. I also apply the terms of service to the content-generative activities of Jane and other users in the case study under scenario two. This scenario shows that the application of the terms of service to content-generative activities cannot be conducted on a comprehensive basis as there is a dearth of case law in this area – particularly in the UK and Australia. I then consider the extent of alignment and incompatibility that the terms of service have with the copyright regimes, and note that there are potential incompatibilities on a number of issues among the regimes.

In Chapter Four I identify the technological features that encourage and constrain users from creating, modifying and disseminating content. I also consider how the technological features encourage or constrain the content-generative activities Jane Doe and other users undertake in the case study under scenario three. I then go on to examine the extent of alignment and incompatibility the technological features have with the copyright regimes, and discuss the implications of the spread of the technological features on social media platforms which encourages and constrains users when they engage in content-generative activities. In rounding up, I set out what the observations from the discussion in Chapter Four, and from scenario three, mean for users.

In Chapter Five I review earlier empirical studies conducted on the perceptions and awareness users have of either intellectual property in general or of copyright laws more specifically. I analyse these findings with the discussions conducted in the earlier chapters of the book. I then draw on scenarios one, two and three – considered in Chapters Two, Three and Four respectively – to understand how copyright laws, the terms of service and the technological features regulate, *in toto*, the content-generative behaviours of users across the five selected social media platforms. Under scenario four of Chapter Five I bring together the conclusions arrived at in the earlier hypothetical scenarios to evaluate the consistency of regulatory signals that users receive from each of these factors regarding the content-generative activities that are legitimate on the platforms.

To do so, I assess the extent to which the positions reached are the same in relation to the application of the following pairs of factors: the copyright regimes and the terms of service; the copyright regimes and the technological features; and the terms of service and the technological features. Through this evaluation I arrive at some observations.

Finally, in my concluding chapter, I summarise the arguments that I have made in the earlier chapters and my recommendations for law reform. I also outline future areas of research.

### **Notes**


*Berkeley Technology Law Journal* 1145, 1147; John Perry Barlow, *A Declaration of the Independence of Cyberspace* (8 February 1996) <https://projects.eff.org/~barlow/ Declaration-Final.html>.


# Chapter One Scope of study and a day in the life of Jane Doe

In this chapter I first set out the adopted definitions of social media and UGC (ie, user-generated content), along with the inclusions of certain types of UGC within the scope of this book. I then explain why I have chosen to confine the discussion in the book to content-generative activities occurring on certain categories of social media platforms.

At the end of this chapter I describe a day in the life of Jane Doe, a hypothetical user of social media. Together with other users, she engages in content-generative activities across a few social media platforms, including those surveyed in this book. These activities constitute a case study, which assist in anchoring the discussions in the later chapters of the book.

### I. Defining social media and user-generated content

Among the characterisations of social media discussed earlier,1 social media has been defined specifically to mean 'a group of internet-based applications that build on the ideological and technological foundations of web 2.0, and that allow the creation and exchange of UGC'.2 The term 'social media' is distinct from the related concepts of web 2.0 and UGC. While web 2.0 refers collectively to the 'architecture of participation'3 or the technological platforms for the evolution of social media, UGC describes instead the various forms of content that are created and shared with the public by users of social media services.4 Due to the characteristics embodied by web 2.0 involving the development of internet-based applications designed to be user-centric and to facilitate collaboration among users in the creation and modification of content, there is an increased generation of both original and derivative UGC online.5

UGC is referred to under a few labels. The Organisation for Economic Cooperation and Development (OECD) has defined 'usercreated content' in a 2007 study as: (i) content 'made publicly available over the internet'; (ii) content which reflects a 'certain amount of creative effort'; and (iii) content which is 'created outside of professional routines and practices'.6 This OECD definition of 'user-created content' has been frequently cited in other research.7

Another term, 'amateur creative digital content' (ACDC),8 similarly refers to UGC. The word 'creative' in ACDC conveys the sense that the content on social media platforms is derived from the creative labour of amateurs.9 This arguably mirrors the substance of the second limb of the OECD definition. On the other hand, the word 'amateur' in ACDC implies both the positive sense of a commitment to a pastime and the negative sense of a lack of skill or knowledge.10 The quality of 'non-professionalism' conveyed by the latter brings to mind the substance of the third limb of the OECD definition.

Ultimately, the existence of these alternative labels for UGC is of little significance – they are discussed mainly to clarify the type of content with which this book is concerned. For my purpose in the book, the term UGC will be employed over other substitute terms including 'usercreated content' or ACDC. To substantiate the meaning given to UGC further, I note that there is also a definition of UGC as content possessing 'an element of either originality, transformativity or a combination of the two'.11 This definition seems to complement the OECD definition – this is because content possessing either originality or resulting from transformative uses, or indeed encompassing both qualities, will also reflect an adequate amount of creative effort to satisfy the second limb of the OECD definition. To develop further on its meaning, not all UGC comprises content originally authored by the relevant users. Instead, UGC can be produced from transformative uses. For instance, when one draws on myriad pieces of original content in remixing video clips (on a platform such as YouTube), or juxtaposes two or more different images to create mash-ups of photographs (on a platform such as Pinterest), UGC results from these transformative uses.

Given these broad definitions of UGC, it is appropriate to set out the types of UGC that are excluded from, and included within, this book's scope. With reference to the first limb of the OECD definition, UGC refers to content that is publicly accessible and that is published in some context. This *publication* requirement excludes *bilateral* messages such as emails.12

With reference to the second limb of the OECD definition, UGC refers to new or adapted content embodying *creative* effort. As UGC that is a by-product of transformation raises concerns of copyright infringement by users,13 therefore, I am concerned with the activities resulting in adapted content, in relation to my consideration of users' compliance with copyright laws when undertaking these activities. UGC that is original content involving no adaptation, derivation or copying on the part of a user14 is also within the book's purview, mainly in relation to addressing first if such UGC is copyright protected, before the question of infringement follows.

At the same time, it has been suggested that UGC should not refer to content that has been appropriated wholesale from another source. For instance, an episode of a television show copied by a user and shared on a content platform such as YouTube is not classified as UGC.15 Nonetheless, such content taken wholesale will be included within this book's scope, as infringement issues clearly arise for consideration where content is uploaded without the permission of copyright holders.

With reference to the third limb of the OECD definition, UGC refers to content created *outside of professional practices*, and that does not have a commercial market.16 At the initial stages of the participative web, UGC was produced with social incentives in mind, such as the desire for self-expression and status, rather than with the expectation of remuneration.17 This last characteristic of non-commercialism is increasingly unreliable as an identifying element of UGC,18 as amateur users often evolve into professionals after an initial phase of non-commercial activity. Indeed, commercial interests can co-exist with altruistic motivations behind the production of content on social media.19

Moreover, the point of time when commercial motivations arise in an amateur creator requires a subjective enquiry into his or her intention, which may not be ascertainable. In applying this qualifier in the third limb, more allowance for deviation should be tolerated. If the requirement for absence of commercial motivation is applied restrictively, it can effectively exclude a substantially large amount of UGC from this book's scope. The creation of content beyond a professional routine nevertheless remains a useful concept in general to distinguish UGC from content conventionally produced by commercial entities.20 Notwithstanding this, given the limitations of the third limb of the OECD definition, it should not be rigidly applied in determining if any content in question is UGC.

In the following section, I will explain – with reference to existing classifications of UGC and social media – why I have chosen to look at the content-generative activities occurring across certain categories of social media platforms.

### II. Choice of social media platforms

It is important to identify both the type of UGC with which the book is concerned and the context in which the UGC is created, modified and disseminated, in order to decide which social media platforms to survey for the book. This is because the production of different types of UGC is linked to the specific UGC distribution platforms.21

In this respect I have decided to confine the book to evaluating the activities which generate what Troscrow et al identify as 'creative content'22 or 'individual textual, audio, image, video and multimedia productions that are distributed online through software platforms including blogs and podcast repositories'. These platforms include, among others, Facebook, Pinterest, Twitter, YouTube (four out of five social media platforms surveyed for this book), Tumblr and Flickr, as well as citizen journalism sites.23

At the same time I have drawn on Kaplan and Haenlein's classification of social media24 to focus on four specific categories of social media.25 These categories are: collaborative projects; blogs; content communities; and social networking sites.26 Because virtual game and social worlds raise special issues, I have excluded the last two categories of Kaplan and Heinlein's classification from consideration.27 Given the chosen focus of the book, I will investigate in particular the application of copyright laws to the content-generative activities, and explore how these align with the terms of service and the technological features, across selected social media platforms from the four categories. I have selected at least one platform28 from each of these four categories for survey in the book.

### III. A day in the life of Jane

It is timely to give examples of how content can be created, modified and shared on multiple social media platforms by a hypothetical user named Jane Doe, along with other users, all in a single day. In this case study my focus on content-generative activities resulting in 'creative content' on four categories of social media informs my choice of the social media platforms Jane and other users generate content on. The platforms surveyed for the purpose of the book and henceforth included as platforms used under the case study will include: the social networking site Facebook;29 the content communities Pinterest30 and YouTube;31 the blog Twitter;32 and the collaborative project Wikipedia.33 With the case study modelled after the usual content-generative activities occurring on social media, I can then consider how the similar activities of Jane and the other users are practically regulated by copyright laws, the terms of service and the technological features in the subsequent chapters of the book. I have also made references in the case study to social media platforms not surveyed in the book, such as the blog WordPress. Such references are useful in illustrating the methodical way in which the regulatory factors on another social media platform outside the book's scope can be considered.

Jane wakes up one morning to a 'bespoke' alarm call from an application on her mobile device.34 Her friend Elly has recommended to her a music video clip of her favourite singer uploaded by the singer's managers on YouTube, and Jane has chosen to have the video clip played, through the application, as her alarm this morning. She is pleasantly surprised with her friend's good choice, opens her Pinterest account while still in bed and 'pins' the video on her pin-board named 'My Favourite Things', with the comment 'Use as your wake-up call!' This addition on her pin-board is viewed by over two hundred of her 'followers' in their 'home feeds', comprising both close friends and strangers, all of whom have decided to 'follow'35 Jane's interests on Pinterest.

Jane jumps out of bed and promptly dresses for work. Her workplace is an hour's ride from her home, but this does not concern her. There are just so many ways she can entertain herself on the train, as she has done every single weekday morning. She whips out her mobile phone and logs into her Facebook account to check what her friends are up to. Through her 'news feed' she gets to view the posts of others within her network. One of her friends, Evangeline, wrote a commentary about income inequality – Jane reads it, and could not help agreeing more, so much so that she is inspired to share the post with others. To re-post this commentary of Evangeline's on her own 'Timeline', there are a few options available to Jane. She can choose either to do a manual selection of the text, followed by a 'copy and paste', or she can choose more conveniently to click the 'Share' option tab positioned right under her friend's commentary. In the first scenario, it may not be clear to a third party reading the post from Jane's 'Timeline' that Evangeline is the original author, unless Jane makes the effort to attribute Evangeline as the author, perhaps by incorporating a short note to that effect. In the latter scenario, if Jane chooses to use the 'Share' option, the source of the content, being Evangeline, will be clearly reflected in the post on Jane's 'Timeline'.

What if Jane decided to include her views and to incorporate them as part of the post, just above or below the original commentary written by Evangeline? In this case, Jane's comment is not distinguishable from Evangeline's original commentary, at least to readers of such post. What if these views of Jane's are substantive in quantum and quality, and not mere one-liner comments to Evangeline's original post? Alternatively Jane may simply decide to insert her views as a 'comment' on Facebook, placed under the original post from Evangeline. Running through these options in her head, Jane decides instead to weave her views into Evangeline's commentary, such that the commentary as a whole puts forward a coherent argument. Unfortunately, the content contributed by Evangeline can no longer be separately identified in Jane's commentary. Nevertheless, Jane posts this commentary, which incorporates her comments to Evangeline's original commentary, on her Facebook 'Timeline'.

If Jane does not expressly attribute Evangeline as the original author of the content that Jane drew from in her commentary, Evangeline's identity will be obscured. Is Jane's commentary copyright protected? What are Evangeline's rights in relation to preventing Jane's use in this instance? Does Facebook, through its terms of service and technological features, encourage Jane and other users to engage in content-generative activities that respect the copyrights of other users such as Evangeline, or is one witnessing the contrary instead?

Still logged into her Facebook account, Jane glances at her watch and realises that she has half an hour to go before she arrives at her destination. Her Twitter account runs in the background and she decides to take this time to check her 'Twitter feed'. She notes, to her delight, that her favourite celebrity blogger Small-Steps36 just 'tweeted' 'New Post – Welcoming a New Member into our Family'. A link to this latest post on Small-Steps' WordPress site has been included within the 'tweet'. Jane immediately clicks on this link, and at the top of Small-Steps' blog post, she spots a photograph of Small-Steps' newborn baby, just delivered yesterday evening at a local hospital.

A brilliant idea comes to Jane's mind, and she immediately searches for other photographs of newborn babies on the pin-boards of other Pinterest users using the key search term 'newborn'. To her delight, lots of results show up on this search. Jane carefully selects the photographs that appeal to her, crops some of them and forms a collage with the selected images. In creating this collage, Jane uses the aid of some photo-editing applications on her mobile phone. She is proud of this collage and decides to title it 'Remedy for an Aging Population' before sharing the collage on her pin-board on Pinterest. She is given the option, on Pinterest's interface, as to whether she wants to simultaneously share the 'pin' on Facebook. Feeling it a waste not to share it, she decides to do so, and her collage appears accordingly on her Facebook 'Timeline'. She also shares the collage on Twitter, by incorporating the link to her pin-board in a 'tweet'. At the same time Jane decides to log into her WordPress account, so that she can share her collage with the readers of her blog and express at greater length the thoughts she had while creating the collage.

When Jane finally reaches work, a group of her colleagues approaches her and tell her that they agree very much with her latest commentary on income inequality on Facebook – in fact, they think that her commentary makes a very original and credible argument. One of her colleagues Zee has strong convictions in sharing information for public benefit and decides unilaterally to add this information on 'income inequality' posted by Jane on her 'Timeline' to the content page on 'income inequality' on Wikipedia. Zee holds the opinion that listing the source of the new information he contributed (ie, being a user's Facebook 'Timeline') may defeat the credibility of the information, and he decides against attributing Jane as the source of the comment. Jane is not aware of this, nor that subsequent to Zee's sharing of her commentary, other content contributors to Wikipedia will eventually develop on Jane's original expression of her idea. Due to Zee's contribution of Jane's commentary, the content page on 'income inequality' on Wikipedia is modified into something quite different from what it once was.

On returning home after a hard day at work, Jane winds down by watching video clips on YouTube. Feeling her creative juices churning again, she decides to share a new video clip on YouTube, as well as on the 'Timeline' of her Facebook page, created by way of 'vidding',37 so that her final clip comprises extracted footages from different video clips available on YouTube. This video clip she creates incorporates scenes shared by the producers of her favourite television series, 'Making Good', with scenes from other random video clips shared of the same television series, albeit not uploaded by the producers nor with their consent. This video clip is intended to reflect Jane's interpretation and thoughts of how a character, by whom she is particularly intrigued, develops in the series. Later that evening Cheryl – someone Jane does not know – chances on Jane's video clip on YouTube. She decides to take screen captures of a few images from the clip and to display these screenshots as thumbnail images on her website, for aesthetic purposes and to tell a different story.

With reference to the events above, what are Jane's rights against Zee and Cheryl, in relation to her commentary and her video clip respectively, under copyright laws? What are the rights of the producers of the television series 'Making Good' against Jane? How can social media platforms such as Facebook, Wikipedia and YouTube influence Jane, Zee and Cheryl's compliance with copyright laws, when they generate content on these platforms?

Before going to sleep that night, Jane thinks of her use of multiple social media platforms and the comments that she has received – from friends, colleagues, and readers whom she does not personally know – for the content she has shared on Facebook, Pinterest, Twitter, WordPress and YouTube. She is grateful that through technology she can widen her reach to so many different audiences. She does not anticipate that, in the next couple of weeks, the collage she shared on Pinterest, Facebook and Twitter, while on her way to work that morning, will spread like wildfire on social media, and that the original photographs included in the collage will be recognised by all the mothers of the newborns featured. Some of the photographs have been cropped, while others, remaining un-cropped, have been photo-edited such that the edited photographs can be differentiated from the originals.

Quite a few avid social media users adopt Jane's style of creating this collage. Several selectively crop a portion of her collage to create their own versions for dissemination on Pinterest, Facebook and Twitter. Meanwhile Jane's collage also catches the attention of a magazine editor, Jasper. He considers using it on the cover page for his magazine's next issue, since its feature article will be on the falling birth rates in developed countries.

Further questions arise from these events. What are the rights of the users who own the copyrights to the original photographs against Jane? Will other users who have adapted and disseminated Jane's collage fall foul of copyright laws? What are the rights of Jane, as well as of the users who own the copyrights to the original photographs, against Jasper, if he uses Jane's collage as described? Is an application of the terms of service and the technological features on platforms such as Pinterest, Facebook and Twitter consistent with an application of copyright laws to the content-generative activities of Jane and other users?

There could be more questions raised than there are answers for them. Indeed, there are endless possibilities for the content-generative activities that can occur on social media and their consequential implications under copyright laws. Within this book's limitations, my focus on the activities described in the case study will make more tangible the ways in which copyright laws, the terms of service and the technological features regulate the content-generative behaviours of social media users.


**Table 1.1 Overview of the formats of content generated and the content-generative activities occurring across four categories of social media**

*(continued)*

**Table 1.1** *(Cont.)*



**content**

**Formats and descriptions of** 

**Content-generative activities that may** 

newgenrtpdf

**attract copyright liabilities**

**Type of social media** 

**Examples** **Description of main activities** 

**on social media platform**

**platform**

iThese categories of uses are the types of transformative uses for which the fair use doctrine in the US arises for consideration. See David Tan, 'The Transformative Use Doctrine and Fair Dealing in Singapore' (2012) 24 *Singapore Academy of Law Journal* 832, 846–8. A fifth category was recognised in David Tan, 'The Lost Language of the First Amendment in Copyright Fair Use: Leval's "Transformative Use" Doctrine Twenty-Five Years On' (2016) 26 *Fordham Intellectual Property, Media & Entertainment Law Journal* 311, 324–5. This fifth category relates to changing the purpose of the original work within a technological context (for example, time-shifting for later viewing) and is therefore not relevant for consideration in respect of the contentgenerative activities occurring on social media.

### IV. Conclusion

Table 1.1 above lists the content-generative activities that occur on social media platforms such as collaborative projects, blogs, content communities and social networking sites. It also articulates an overview of the formats of content that is generated and the activities that potentially attract copyright liabilities. The platforms surveyed in this book are highlighted in bold.

With the defined focus of this chapter in mind, I will discuss, in the next chapter, copyright's regulation of the content-generative behaviours of social media users, especially the challenges posed by the copyright laws of the US, the UK and Australia. I will also consider the implications of the strict application of copyright laws to the content-generative activities of Jane and the other users in the case study.

### **Notes**


establish social networks online. Virtual game and social worlds are online communities that simulate real life by enabling users to appear in the form of personalised avatars to interact with one another; see Kaplan, A.M. and Haenlein, M. 2010. Virtual game and social worlds are excluded from consideration as the content generated in these environments constitutes small-scale tools. On the other hand, the content on platforms hosting collaborating projects is both collaborative and creative.


# Chapter Two Regulation by copyright laws

In this chapter I consider the application of copyright laws of the US, the UK and Australia to the content-generative activities of social media users. I begin by discussing the following copyright subsistence and infringement issues: the types of subject matter that are protected by copyright laws; originality and authorship requirements; fixation, recording or reduction to material form; the scope of rights protected, including moral rights; available remedies; exceptions to copyright infringement, in particular, the fair use doctrine in the US and the fair dealing exceptions in the UK and in Australia; and finally, conflict of laws issues. I also outline the challenges posed in addressing these issues.

I then apply the copyright laws of each of the three jurisdictions to the content-generative activities undertaken by Jane and other users in the case study, under the first of four hypothetical scenarios in this book. I do not seek here to determine with finality how the copyright issues will be resolved in relation to each activity. Specific analysis is possible only in the context of particular disputes. My purpose is rather to provide a general overview of the interaction between copyright laws and the generation of content in the social media context.

The application of copyright laws in this chapter to the case study constitutes scenario one of this book. It allows for the evaluation of the consistency of the copyright regimes, with each of the terms of service and the technological features, under subsequent scenarios in the later chapters.

### I. Relevant copyright standards

The clause on intellectual property rights in the US Constitution provides for the promotion of 'the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries'.1 The US Supreme Court has reiterated in its decisions that copyright exists to promote creative expression and its dissemination, so as to encourage others to build freely upon the ideas contained within copyright works.2 In the UK the goal for copyright is similarly articulated in the first statute providing for the regulation of copyright, the *Statute of Anne 1709*; 3 its preamble described the act as one for 'the encouragement of learning'.4 Australian copyright law has this same goal as its British counterpart.5

The respective copyright statutes in the US, the UK and Australia have been shaped, to some extent, by the obligations assumed by each country under international instruments such as the *Berne Convention for the Protection of Literary and Artistic Works* (*Berne Convention*)6 and the *Trade-Related Aspects of Intellectual Property Rights Agreement* (*TRIPS Agreement*).7 In the following sub-sections I will refer to the copyright principles contained in the *Copyright Act of 1976* in the US (*US Copyright Act*),8 the *Copyright, Patents and Designs Act 1988* in the UK (*UK Copyright Act*)9 and Australia's *Copyright Act 1968* (Cth) (*Australian Copyright Act*).10 In particular, given that copyright laws protect digital content, including content on social media, I will discuss the potential application of the copyright laws of these three jurisdictions to the content-generative activities on social media. I will also set out the challenges faced in addressing copyright issues pertaining to these activities. This will enable me to examine how social media platforms can alter the effectiveness of copyright laws in regulating users' content-generative behaviours.

### A. Subsistence: works and other subject matter protected by copyright

Given the dual role of users as producers and consumers of content on social media, it is important for users to know whether the content they create and share on social media is copyright protected, and if this entitles them to rights against other users. In addition, users may like to know whether the primary content they use from social media to create secondary content is entitled to copyright protection in its own right. For example, are 'status updates' on Facebook and 'tweets' on Twitter protected under the copyright laws of the US, the UK and Australia? Addressing questions on copyright subsistence requires a preliminary assessment as to whether the particular content falls under the categories of works and other subject matter protected.

The categories of copyright-protected works are set out in a nonexhaustive list protected under the *US Copyright Act*. The content available across the five social media platforms surveyed is in textual, image, audio and video formats, and the categories of works that are principally relevant to this book include: literary works; musical works; dramatic works; 'pictorial, graphic and sculptural works';11 audiovisual works; sound recordings; and architectural works.12 Additionally, compilations of pre-existing materials or data, as well as derivative works – albeit not of materials used unlawfully or not contributed by the author in question13 – are copyright protected.

In contrast, copyright protection under the *UK Copyright Act*14 and the *Australian Copyright Act*15 extends to a finite group of works and other subject matter.16 This group includes literary, dramatic, musical and artistic works, as well as sound recordings and films. As a 'broadcast' is broadly defined in the UK17 to include any internet transmission that takes place simultaneously on the internet, broadcasts are relevant for consideration in the book. On the other hand, a 'broadcast' in Australia18 is more narrowly defined and will not be relevant. Additionally, because of the limited definitions of 'published editions' in the UK19 and the references made to 'published editions' in Australia,20 published editions are not relevant to this book.

At the same time, as minor contributions of content are incorporated through incremental activities on social media and are regular occurrences on social media, users are likely to be confused on whether content created or used by them with minimal effort is protected under copyright laws. Mature copyright systems protect expressions, but not ideas, facts and other building blocks of literary and artistic expression.21 In the US such material, whether or not embodied in copyright-protected works and subject matter, is expressly excluded from copyright protection.22 For instance, the *US Copyright Office Regulations* provide, as examples of materials not protected by copyright and of which applications for registrations will not be entertained, 'words and short phrases such as names, titles and slogans' and, among other things, ideas, plans and so on.23 The axiom that copyright protection only covers the expression of ideas has been described as an amorphous characterisation rather than a principled guidepost.24 As such, courts in the US have developed two doctrines to fill the gaps.25

With reference to Goldstein and Hugenholtz's description of the doctrines, the first is the *doctrine of merger* and the second, '*scènes à faire*'. Under these two doctrines expressions will not be copyright protected if the underlying ideas can be expressed in only one or a limited number of ways.26 While the first doctrine usually applies to functional works, such as rules, forms and computer programs, the second applies mainly to fictional works, including novels and dramas.27 Because the second doctrine withholds copyright protection from elements such as narrated incidents that are preordained by un-protectable ideas, including basic plot,28 this could mean that a fair amount of content on social media platforms – being expressions which flow from the commonplace ideas shared on the platforms – is not copyright protected. An example of such content is a status update on Facebook, say a photograph of the blue skies on a sunny day, accompanied by a comment that reads: 'Perfect weather for a stroll today!' This comment on its own will not be copyright protected. Also, as users can undertake content-generative activities simultaneously in relation to the same content on social media, they may frequently arrive at similar expressions that necessarily follow the same idea.

The two doctrines in the US described above are employed to effectuate the distinction between ideas and expressions.29 This idea– expression dichotomy similarly applies in the UK and in Australia, and results in the non-protection of ideas under copyright laws.30

#### B. Subsistence: originality

Whether content generated on social media is protected under copyright laws will be determined by the originality of such content. This concept of originality under copyright laws31 is closely linked to the concept of authorship, which will be discussed next.

The measure for originality entitling a work to copyright protection is the independent creation by its author (as opposed to copying from other works) and the exercise of some minimal degree of creativity.32 In the US, originality is the touchstone of copyright protection.33 Differentiating between a mechanical arrangement of content that is not copyright protected and a compilation that is – provided that there is some creative effort found in the arrangement or selection of material – can be challenging.34 For example, is a collage incorporating a few images shared previously on Pinterest deserving of copyright protection on this measure? If the material variation test35 is used to counter the ambiguity of the definition of 'creativity',36 the question that arises will be whether the secondary work contained more than a trivial variation vis-à-vis the original work and is hence copyright protected. Nevertheless, the analysis to be undertaken in respect of such variations in terms of number, size, abstract significance and so on necessarily entails multiple subjective judgements which can result in different outcomes.

In the UK37 and in Australia,38 the statutory requirement of originality for copyright protection only applies in relation to literary, dramatic, musical and dramatic works; it does not apply in relation to other subject matter such as sound recordings, films and broadcasts.39 In both jurisdictions, copyright protection has to be the result of a person's 'skill, labour or experience', in addition to being more than a copy of earlier content.40 It is worth noting that the threshold to be met for the originality requirement in all three jurisdictions is fairly low.41

Further, in the UK, the requirement of sufficient skill and/or labour is suggested to operate as a *proviso de minimis* (ie, a court will refuse to consider trifling matters) and henceforth excludes works in which the degree of literary composition is slight from copyright protection.42 Similarly, in Australia, Ricketson has suggested that the application of the *de minimis* principle results in the denial of copyright protection in works on the basis that they are not original, or alternatively are 'insubstantial' in purely quantitative terms.43 There is also the consideration that conferring copyright protection on single words or phrases may intrude too much on the rights of the public,44 in the case of which the real reason for denying copyright protection is suggested to be one of public policy.45 In this respect English and Australian courts have not recognised as copyright-protected works the following: an advertisement consisting of four common sentences;46 the title of a song;47 the word 'Exxon', which is a well-known trademark;48 a short series of words communicating the need for assistance;49 and headlines.50

The question then is whether simple activities such as the posting of a brief 'status update' on Facebook, commenting on content shared on Pinterest or YouTube and 'tweeting' on Twitter, as well as making minor edits on Wikipedia, result in content that is copyright protected. Given that much of the content on social media platforms will be short or insubstantial works, add-ons and revisions, ascertaining whether content is copyright protected in an instance will require consideration of the following:


For example, a 'tweet' – limited to a maximum of 140 characters on Twitter – may not be copyright protected because of either *or* all of the following reasons: the 'tweet' consists of facts or ideas; the 'tweet' is insufficiently original; or the 'tweet' fails to meet the basic quantitative requirement.51 The joke of the freelance writer Olga Lexell, which reads: 'Saw someone spill their high end juice cleanse all over the sidewalk and now I know God is on my side'52 is therefore more likely to be copyright protected than a 'tweet' that reads: 'Loving the sunny Melbourne', given that all three of the reasons apply in the case of the latter 'tweet'.

The rate at which content is simultaneously created, modified and disseminated by social media users gives rise to additional considerations. The degree of originality between successive versions of content53 (for instance, where derivative material is based upon pre-existing material)54 required for copyright protection, as well as the point at which content contributed as an add-on or revision becomes a copyright-protected work in terms of quantum, raise issues that are difficult to resolve.55 Richard Prince's recent sale of the enlarged images shared by other users on Instagram as artworks comes to mind here.56 In between an original image first shared by the relevant Instagram user and the subsequent artwork incorporating this image sold by Prince, a few successive versions of the modified image were possibly generated on Instagram – this happens when users, including Prince, comment on the image. The 'modified composites' of the images circulating on Instagram which incorporate other users' (including Prince's) comments are arguably not derivative works; there is little originality and authorial activity57 to qualify them as warranting separate consideration. It is far from certain, however, whether Prince's artworks will qualify as copyright-protected derivative works by virtue of his enlargement and re-contextualisation of the relevant images.

Indeed, there is no clear approach under existing authorities that can definitively address the issues raised above, to give certainty as to whether specific content on social media (whether new or a successive version of content) is copyright protected. Moreover, given the three criteria highlighted above, it is foreseeable that a large volume of content on social media may not be copyright protected under the copyright laws of all three jurisdictions.

#### C. Subsistence: authorship

Next the authors of content on social media, in whom copyright resides, have to be identified. While the *US Copyright Act* expressly provides that copyright vests in the author or authors of the work, and that the authors of a joint work are co-owners of the copyright of such work,58 the term 'author' remains undefined. A 'joint work' has been defined as a work prepared by two or more authors with the intention that their contributions be merged into inseparable parts of a unitary whole.59 This requirement for contemporaneous intention has been suggested to be satisfied even where participants do not know one another and have not worked within the same time frame, so long as each participant contributed with the intention of integrating his or her contribution into a unitary product.60 Examples of such joint works, each created by multiple authors holding the intention to merge their contributions into a single product, are the content pages on Wikipedia.

At the same time, under the *UK Copyright Act*, an 'author' is defined as the person who creates a work,61 and 'a work of joint authorship' is defined as a work produced by the collaboration of two or more authors and in which the contribution of each author is not distinct from the other(s).62 In Australia the term 'author' is defined only in relation to a photograph under the *Australian Copyright Act*; 63 similarly, 'a work of joint authorship' refers to a work that is produced by the collaboration of two or more authors and in which the contributions of each author are inseparable from one another.64 In view of these definitions in the UK and in Australia, it is less clear if content pages on Wikipedia are 'works of joint authorship'. Although the history of a content page sets out the individual contribution made to that page by each user, each user's contribution to, or editing of, a single sentence in the page can be so minor that it may be practically unfeasible to distinguish the individual contribution of one user from another. If this is the case, such content pages on Wikipedia are 'works of joint authorship'.

Further, in spite of the provision for joint authorship under the copyright laws of all three jurisdictions, it may be arduous to identify the users who have authored content on social media together. This is because such content frequently comprises parts from several users that are inseparable from one another, as per the definitions given for works jointly authored. Previous criticisms of copyright laws for failing to accommodate the realities of contemporary writing practices still hold true today,65 as collaborative writing practices are shoehorned into the conventional human-centric concept of authorship.66 While it remains crucial to identify the human authors of works jointly authored, it may be tedious to do so in relation to all such content on social media. For example, a user can write a segment for an article that incorporates existing contributions from other contributors on Wikipedia. Although all of the authors of this article are joint authors, their identification through their usernames67 is subject to their retention of their Wikipedia user accounts. Also, more often than not, the Wikipedia platform will be attributed as the source of the relevant content – in this sense, the identification of the joint authors of content on Wikipedia takes a back seat.

In this respect Ginsburg, in critiquing the techno-postmodernist view of the 'death of the author' and the rising importance of the reader,68 highlights that under this view, the reader no longer draws from the authored works of others. Instead, the reader casts the contents of his or her bucket into the 'constantly changing stream of reader-modified creations'.69 In this sense, the reader is characterised as a creator, as reading is an act of creative interpretation in which readers give meaning to the texts they peruse.70 Social media users are active participants: they interact with, and continuously contribute to, existing works, often to the same extent as the original producers of these works.71 At the same time, Bently's observation that the author is a notion to be sustained only for an instant72 is also relevant to the generation of content on social media. This is particularly the case as social media platforms are designed to allow for a great extent of collaborative participation from their users, in creating, modifying and disseminating content. Because active interaction with content is so often encouraged on social media, with no single user able to impose his or her unilateral significance as creator73 over a piece of content, the palpable challenge faced is in deciding on whom copyright protection is vested.74 For the reasons given above, these dilemmas around the designation of authorship (whether single, joint or multiple) and the identification of authors are amplified when it comes to content generated on collaborative projects such as Wikipedia.75

### D. Subsistence: fixation, recording or reduction to material form

Where originality and authorship requirements standards are met, the issue of fixation, recording or reduction to material form comes into play. It has been argued that the content created on some categories of social media – for instance, social networking platforms such as Facebook and blogs (especially micro-blogs such as Twitter) – and which is not stored separately elsewhere does not meet the fixation standard, or its equivalent, for copyright protection.76 This is because content on such platforms is incredibly fluid, and hence can be deleted just as quickly as it is posted.77 For example, Twitter only displays the 3,200 most recent 'tweets'.78 Although old 'tweets' are not displayed on Twitter, these 'tweets' are stored and hence copyright protected; moreover, they can still be located.79 Further, some social media platforms may invite the continual participation of users with regard to the collaborative content on such platforms. Wikipedia, a long-term collaborative project that is open-ended, and that allows users to create, modify and share content over an indefinite period of time, is one example of such a platform. On the Wikipedia platform, given that content is constantly evolving, it is difficult to identify *at which point* content, and further *what content*, is fixed, recorded or reduced to material form, and thus copyright protected.80

In the US copyright protection is conferred on an original work when it is 'fixed in any tangible medium of expression' by or under the authority of the author.81 So long as the embodiment of the work in a copy 'is sufficiently *permanent* or *stable* to permit it to be perceived, reproduced, or otherwise communicated for a period of *more than transitory duration*',82 the nature of the medium is immaterial. In this respect the term 'copies' is broadly defined and refers to material objects, other than phonorecords, in which a work is fixed by any known method (whether existing now *or* later developed) and from which a work can be communicated, either *directly* or with the aid of a machine or *device*. Therefore copyright protection is granted to a work that is fixed, wherever that fixation takes place, whether on a web page of a social media platform or otherwise.

In the UK copyright only subsists in literary, dramatic and musical works that are '*recorded*, in writing or *otherwise*'.83 Furthermore, an 'artistic work' is defined to mean, among others, a painting, drawing or photograph (ie, defined also as a recording of light or other radiation on any medium).84 In addition, 'sound recordings' and 'films' are broadly defined to include recordings on *any* medium.85 Similarly, in Australia, in respect of literary, dramatic, musical and artistic works, reference is made instead to works that are *reduced* to writing or some other *material form*, 86 the latter of which is defined to include *any* form of storage of the work.87 'Sound recordings' and 'cinematograph films' in Australia are also broadly defined.88 Thus, in both the UK and in Australia, I argue that the wide definitions in relation to recording or reduction to material form, as the case may be, include the recording or storing of content on social media – such content can thus be copyright protected.

Finally, following the satisfaction of the fixation requirement, or its equivalent, copyright subsists in works and other subject matter only when conditions tied to the publication or authored status of such works or other subject matter are met. For instance, in the US published works (being literary, musical, dramatic, pictorial, graphic, sculptural, audiovisual or architectural works, as well as sound recordings, compilations and derivative works)89 are copyright protected if, among other things,90 they are first published in the US or in a foreign nation that is a treaty party.91 Sound recordings are copyright protected only if they are first fixed in a treaty party.92 Unpublished works, on the other hand, are granted copyright protection regardless of the nationality or domicile of the author.93

It is noted that the term 'publication' is defined as the distribution of copies of a work to the public by sale or other transfer of ownership.94 On the face of this definition, content on social media may be considered *unpublished* in the US, as such content is not distributed to the public by sale or other transfer of ownership. Thus copyright's protection of content on social media could exist irrespective of the nationality or domicile of the relevant author.95 There is hence no need to determine the precise venue of first publication or fixation of content on social media platforms: the treatment of content on social media as unpublished obviates this difficulty.96 This would mean that content created by social media users without any connection to the US, but which meets the other copyright subsistence requirements discussed above, is copyright protected in the US.

In the UK a literary, dramatic, musical or artistic work, sound recording or film qualifies for copyright protection if such work, sound recording or film is first published in the UK, or the author is a qualifying person (such as a British citizen or a person resident in the UK).97 The term 'publication' is, however, defined more broadly than in the US to include not only the issue of copies, but also the making available of literary, dramatic, musical or artistic works to the public by means of an electronic retrieval system.98 While there is no definition of the term 'copies', the definition of 'copying' is instructive. In this respect 'copying' can include, among other things, the storing of a literary, dramatic, musical or artistic work in *any* medium by *electronic* means, as well as the making of copies that are *transient* or *incidental* to the use of such work.99 By the application of these definitions, content shared on social media constitute *published* works in the UK.

In Australia the requirements for copyright protection are similar and refer, among other things, to the place of first publication, or the nationality or domicile of the author if the relevant work is published.100 The term 'publication' is widely defined as occurring when reproductions of literary, dramatic, musical or artistic works are supplied, whether by sale or *otherwise*, to the public.101 Therefore content on social media can constitute *published* works in Australia, just as in the UK. For such works to be copyright protected in either jurisdiction, the first publication, nationality or residency requirements mentioned earlier will need to be met.102 While nationality and domicile are relatively easy to ascertain if the users who authored the content can be identified, the same cannot be said of identifying the country of first publication, given the global reach of content shared on social media.

This problem is somewhat mitigated by the principle of national treatment stipulated under article 5(1) of the *Berne Convention* which requires the country in which protection is claimed to treat foreign and domestic authors alike.103 Although it may be challenging to identify the venue of first publication, it is more likely than not that the nationality and domicile of a user is that of a contracting party to the *Berne Convention*, given that very few countries are not contracting parties.104 In general, so long as a user is a national or resident in a *Berne Convention* country, and other copyright subsistence requirements are met, the content he or she creates on social media will be copyright protected, even if the venue of first publication (if published) cannot be ascertained.

This means that, because all three countries are members of the *Berne Convention*, 105 just as content created by a social media user resident in the UK can receive copyright protection as unpublished content in the US, content created on social media by a person resident in the US will similarly receive copyright protection as published content in the UK, pursuant to *The Copyright (Application to Other Countries) Order 1993* in the UK.106 The same content, if available online in Australia, being published in a *Berne Convention* country, is hence copyright protected by virtue of the *Copyright (International Protection) Regulations 1969* in Australia.107

#### E. Infringement: scope of protection

Once the copyright subsistence requirements are satisfied and the relevant content (whether on social media or otherwise) is found to be copyright protected, the next step is to inquire into the specific rights infringed by the activities undertaken with regard to such content. A copyright holder is entitled to a bundle of exclusive rights under the *US Copyright Act.*108 Unless otherwise stated, these rights are held by authors of the full range of works that content on social media platforms can constitute, namely: literary works; musical works; dramatic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.109 The most basic right in the bundle to which a copyright holder is entitled is the right of *reproduction.*110 As mentioned earlier, the term 'copies' is liberally defined. It refers to the material objects in which a work is fixed and from which a work can be *communicated*, either directly or with the aid of a machine or *device*. 111 This broad definition of 'copies' includes the reproductions of pre-existing content when users interact with such content on social media. Such reproductions can occur, for example, when users share another user's 'status update' on Facebook, 're-pin' a 'pin' on Pinterest or 're-tweet' another user's 'tweet' on Twitter.

Under the *UK Copyright Act*, the right of reproduction is one among others in a similar bundle of rights.112 'Copying'113 can mean, among others: the storing of a literary, dramatic, musical or artistic work in *any* medium by *electronic means* (ie, in a material form);114 the making of a copy in two dimensions of a three-dimensional work;115 in relation to a film or broadcast, the making of a photograph of the whole or substantial part of any image forming part of the film or broadcast;116 and the making of copies that are *transient* or *incidental* to some other use of a work.117 This right of reproduction of a literary, dramatic, musical or artistic work in a material form is similarly set out under the *Australian Copyright Act.*118 In respect of sound recordings and cinematograph films, copyright holders have the equivalent right to make copies of the relevant subject matter.119

The term 'material form' is widely defined to include *any* form of *storage* of a work or adaptation, or a substantial part of the work or adaptation; at the same time the term 'copy' refers to *any* article or thing in which the visual images or sounds comprising a cinematograph film are embodied.120 Further, a work, sound recording or film is reproduced if it is converted into or from a digital or machine-readable format.121 In addition, the right of reproduction under Australian copyright legislation can be infringed when a two-dimensional work is produced from a three-dimensional artistic work.122 There are some exceptions from infringement, including one that applies to the taking of a photograph of a sculpture situated permanently in a public place.123 There will, however, be an infringement if a photograph of a privately owned sculpture is shared on a platform such as Pinterest. Therefore some contentgenerative activities on social media, such as those described above, can involve the infringement of the right to reproduce existing content, whether reference is made to this right in the US, the UK or Australia.

The challenge faced is in differentiating these activities from other activities which involve *de minimis* uses (ie, the forms of copying that are too trivial for copyright laws to apply) and hence do not amount to infringement. In the US, whether the right of reproduction has been infringed is determined by the standard of substantial similarity. The allegedly infringing work is compared with the original work – both to ascertain the amount of the original work that has been copied, as well as the observability of the original work in the allegedly infringing work (particularly in the case of visual works).124 In the UK and in Australia, the standard is couched in different terms. The reproduction of the whole or a substantial part of the original work in the allegedly infringing work can amount to infringement.125 In any case, the application of the standard of substantial similarity in the US may not give rise to a different outcome from that reached in the UK and in Australia (ie, when the test of whether a substantial part of the original work has been reproduced is applied). This is given that the latter also involves looking at the similarities between the original and the allegedly infringing works.126

Secondly, the right of a copyright holder to *prepare derivative works* under the *US Copyright Act*127 may be infringed, for example, when other users' 'pins' are modified to form collages on Pinterest or when 'vidding' results in new video clips on YouTube. The definition of a 'derivative work' under the *US Copyright Act* refers to 'a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation or any other form in which a work may be recast, transformed or *adapted*' and further states that 'a work consisting of editorial revisions … or other modifications which, as a *whole*, represent an *original* work of authorship' is a 'derivative work'.128 The allegedly infringing derivative work also has to be 'substantially similar' to the original before it is seen as infringing.129

Further, the scope of application of this right to prepare derivative works is unclear. There are uncertainties as to whether material derived from an original work which does not qualify for copyright protection separately as a secondary work can infringe the derivative works right130 (although, in any case, the right of reproduction could still be infringed if there is substantial similarity). If the view that a derivative work must be original and qualify for copyright protection for the derivative work's right to be infringed is adopted, the derivative work's right will only be relevant in a fairly narrow range of situations131 with respect to content on social media.

Notwithstanding this, Prince's sale of art works comprising images shared on Instagram could be an example falling within this range of situations.132 These resulting art works can be argued to be sufficiently modified (ie, in presentation and scale) by virtue of Prince changing the purpose133 of the Instagram images to create original works of authorship, and are hence derivative works. They may also appear to be substantially similar to the original images as these images are readily observable in the art works134 (although the wholesale embodiment of the images within the art works alone is not determinative), such that they are infringing of the rights to prepare derivative works.135

In the UK there is instead the right to *make adaptations* of works, or to do anything in relation to such adaptations.136 This right of adaptation is only restricted by copyright in a literary, dramatic or musical work (but not an artistic work).137 'Adaptation' is further defined under the *UK Copyright Act.* The forms of adaptations include, among others: in relation to a literary work, a translation of the work or a version of the work in which the story is conveyed mainly by pictures in a form suitable for reproduction; or, in relation to a musical work, an arrangement or transcription of the work.138 Under the *Australian Copyright Act*, this right is also referred to as the right of adaptation, and only attaches to a literary, dramatic or musical work (but not an artistic work).139 What an 'adaptation' means is also similarly defined.140 Additionally, in both jurisdictions, a copyright holder enjoys further rights to do anything in relation to the adaptation of a literary, dramatic or musical work.141 In the UK and in Australia, given that the definitions of 'adaptation' are different from the definition of a 'derivative work' in the US, the right to make adaptations or to do anything in relation to these adaptations is potentially relevant for consideration in relation to different types of content-generative activities. The modification of content, undertaken by users on social media discussed earlier (ie, those that result in derivative works in the US), can, however, be considered in relation as to whether the right of reproduction has been infringed.

Thirdly, the right to *distribute*142 is another right in the bundle. It is described, under the *US Copyright Act*, as the right 'to distribute copies or phonorecords of the copyright work to the public by *sale* or *any other transfer of ownership*, or by rental, lease or lending'.143 As mentioned earlier, the term 'copies' refers to material objects in which a work is fixed and from which a work is communicated.144 In spite of the lack of express stipulation, the digital transmission of content has been held to fall within the exercise of the exclusive right to distribute.145 Further, although the transmission of content on social media platforms to the users of such platforms – for example, the sharing of a 'status update' on Facebook, a 'tweet' on Twitter or information on Wikipedia – is not occurring by sale or any other transfer of ownership, a US court is expected to take a broader view of a copyright holder's right to distribute his or her content, so as to uphold the exclusive rights held by copyright holders in the digital age.146 In this respect, the right to distribute can be infringed through the usual dissemination or making available147 of content on social media.

In the UK the equivalent to the right to distribute is the right *to issue copies of a work to the public*. 148 In light of the express exclusion of the subsequent distribution of copies previously put into circulation (from the exercise of this right) under the *UK Copyright Act*, 149 this right will not be infringed by the regular dissemination of content on social media, insofar as such dissemination involves content already circulated. Under the *Australian Copyright Act*, the right to *publish* is provided for in relation to literary, dramatic, musical and artistic works.150 This right to (*first*) publish under section 31(1)151 is distinguished from the notion of publication for the subsistence of copyright under section 32.152 As in the UK, the right to publish is arguably not infringed by the typical dissemination of content on social media, so long as the content has already been made available to the public. Nonetheless, there are limited situations – such as the sharing of content known privately on social media for the first time (for example, when a private copy of a copyright-protected collage is converted into a digital copy and shared on social media, or when an image of a private sculpture is disseminated for the first time) – which can infringe this right of first publication.

Fourthly, a copyright holder has the right to *perform publicly*, 153 among others, works such as literary, dramatic or musical works, motion pictures or audiovisual works, as well as sound recordings (by means of digital audio transmissions). The term 'performance' is defined broadly. Also, the *US Copyright Act* makes clear that there is actionable infringement when there is a transmission of a performance of a copyright work, and explains what performing a work publicly means (includes performing at a place open to the public *or* transmitting or otherwise communicating a performance to the public, by means of any *device* or *process*, notwithstanding that the performance is *received in separate places at different times*).154 Furthermore, the right to *display publicly*155 applies (in addition to literary, musical or dramatic works) to pictorial, graphic and sculptural works, as well as individual images of motion pictures and other audiovisual works, and is defined broadly enough to include the showing of a copy of a work, either directly or by means of a 'film, slide, television image, or any other *device* or *process*'.156

Displaying a work publicly is as widely defined as performing a work publicly, and includes displaying the work at a place open to the public *or* transmitting or otherwise communicating the display of the work, by means of any *device* or *process*, notwithstanding that the display is *received in separate places at different times.*157 A place open to the public can include a limited space which can accommodate only a few people at any one time, and the performance and display of a work are considered as 'public' irrespective of the composition of the audience.158 Additionally, a copyright holder has the right to perform a sound recording publicly by means of a digital audio transmission.159

These broad definitions of public performance and display are intended to accommodate technological changes. This means that some content-generative activities on social media – in particular, the dissemination of content – can infringe the exclusive right of a copyright holder to perform and display publicly his or her content. An example of the former (ie, right to perform publicly) is the uploading of a television episode on YouTube, while an example of the latter (ie, right to display publicly) is the 'pinning' of a photograph of a private sculpture on Pinterest – both without the relevant copyright holders' consent.

In the UK the equivalent rights are the rights to *perform, show or play a work in public* and to *communicate a work to the public*. 160 The performance of a literary, dramatic or musical work includes any mode of visual or acoustic presentation, including a presentation by means of a sound recording, film or broadcast of the work.161 The *UK Copyright Act* further provides that where copyright is infringed by virtue of the performance, playing or showing of a work, 'by *means* of *apparatus for receiving visual images* or *sounds conveyed by electronic means*', the person by whom the images or sounds are sent is not responsible for the infringement.162 Moreover, the communication to the public of a literary, dramatic, musical or artistic work, sound recording, film or broadcast has been broadly defined to include the *broadcasting* of the work or the *making available* of the work to the public by *electronic transmission*, in a way that members of the public access such copyright work from a *place* and at a *time individually chosen* by them.163

Given these technologically neutral definitions, the dissemination of content on social media can infringe the rights to perform, play, show or communicate to the public in the UK. This 'public', whether in relation to the rights to issue copies (as discussed earlier), to perform, show or play, *or* to communicate,164 has been construed as referring to an indeterminate number of recipients, or a fairly large number of persons.165 More specifically, in respect of a performance made to a limited group of persons, the 'public' has been interpreted to refer to a 'copyright owner's public'.166 Such public is considered in relation to the copyright owner – where a copyright owner would be exercising his or her statutory right in performing before an audience described as the owner's 'public' or part of his or her 'public', any performance without the owner's consent to this audience or 'public' will infringe his or her copyright.167

In relation to the right to communicate, the concept of 'public' has been recently qualified in a decision made by the European Court of Justice to refer to a 'new public' that was not taken into account by the copyright holder when he or she authorised the initial exercise of his or her copyright.168 The consent of the copyright holder is needed for a communication made to the 'new public'.169 Given that the applicability of the concept of 'new public' in the UK is uncertain,170 some content-generative activities, such as those discussed above (ie, the activities on YouTube and Pinterest) will likely involve the (unauthorised) exercise of the right to communicate.

In the same vein, a copyright holder of a literary, dramatic or musical work has the exclusive right to *perform* the work *in public* under the *Australian Copyright Act*, 171 as well as the right to *communicate* a literary, dramatic, musical or artistic work *to the public*. 172 'Performance' has been defined broadly to refer to 'any mode of visual or aural presentation … by the use of a record or by any other means'.173 The term 'communicate' is also defined widely to refer to the *making available online* or *electronic transmission* of a work or subject matter.174 There are equivalent rights in respect of sound recordings and cinematograph films, namely, the right to *cause* the sound recording or film *to be seen or heard in public* and the right to *communicate* the sound recording or film *to the public*. 175 While the term 'public' includes a small portion of the public, the phrase 'to the public' emphasises the nature of the recipient as a member of the public, even if in a private situation.176 Audiences in a private situation can constitute the 'copyright owner's public' if a work is performed in a commercial setting.177 It is further noted that 'to the public' is defined as the public within or outside Australia.178 Thus these rights to perform, communicate *or* cause to be seen or heard in public can be infringed on social media. Like in the UK, the right to communicate to the public, in particular, is frequently infringed through similar activities to those given in the earlier examples.

Among the exclusive rights discussed above, I note that the rights to reproduce,179 to make available (in the US)180 and to communicate to the public (in the UK181 and in Australia182) will be the most relevant rights for consideration in relation to content-generative activities on social media.

#### F. Infringement: other rights

Further to the copyrights above, other rights – such as moral rights – held by the authors of content can be infringed on social media. Moral rights essentially allow the creators of works to control the treatment and presentation of such works by others.183 The infringement of these rights is relevant for consideration in the UK or in Australia, but not in the US, for the reasons given below.

The *Visual Artists Rights Act* (*VARA*)184 that provides for the 'rights of attribution and integrity'185 in the US applies to a very narrow subset of works of visual art. This includes paintings, drawings, prints, sculptures and still photographic images produced for exhibition purposes, existing in single copies or as limited editions.186 As such, moral rights of attribution and integrity vest only in a very narrow group of persons, being the authors of works of visual art.187

Pursuant to the *VARA*, an author is entitled to: the right of attribution (ie, the right to claim authorship);188 the right against false attribution (ie, to prevent use of his or her name as the author of any work he or she did not create);189 the right to prevent use of his or her name where there is a distortion, mutilation or modification of the work that would be prejudicial to his or her honour or reputation;190 the right to prevent modification of his or her work that would be prejudicial to his or her honour or reputation;191 and the right to prevent any intentional or grossly negligent destruction of a work of recognised stature.192 The right of attribution is suggested to be broad enough to object to misattribution – this happens, for example, when one's work is plagiarised by another and the plagiarist is credited for the work instead of the author.193 The right of integrity is, however, limited by the condition that a cause of action for its violation only arises where there is a distortion, mutilation or modification that is prejudicial to the author's honour or reputation.194

On the other hand, in the UK, moral rights are held in a broader range of works and films. For instance, an author of a literary, dramatic, musical or artistic work195 or the director of a film has the right of attribution (ie, right to be identified) under the *UK Copyright Act*. 196 Although the right against misattribution of a work or film to another is not expressly provided for, such right to object to incorrect attribution is one that is assumed to fall under the general right to attribution.197 In general, this right of attribution arises when literary, dramatic, musical and artistic works, as well as films, are published commercially or made available to the public, whether by way of issue of sound recordings, films or other communication to the public, as applicable.198 There can, however, only be infringement of the right of attribution if the author or director has previously asserted his or her moral rights – this assertion may be general or specific.199

Separately, there is a right against the false attribution of authorship in the UK.200 In the same way, the right of integrity is held in a similarly broad range of works and films, and is violated when a modified or adapted work is distorted, mutilated201 or otherwise prejudicial to the honour or reputation202 of the author or director.203 Because of the wider application of moral rights in the UK, these rights can be infringed on social media. For example, the author's moral right of attribution204 may be infringed when a commentary shared as a 'status update' by a Facebook user is plagiarised by another user and shared on Facebook or another platform, without identification of the first user as the author. A separate example in which the author's moral right of integrity205 is potentially infringed occurs when a user takes a photograph of an art work and vandalises it digitally.

Likewise moral rights under the *Australian Copyright Act* are held broadly in, among others, literary, dramatic, musical and artistic works, as well as cinematograph films,206 but without the requirement of assertion. In Australia these basic authorial entitlements are divided into three main rights: the right of attribution of authorship; the right of integrity; and the right not to have the authorship falsely attributed.207 The right against false attribution of authorship differs from its namesake in the UK and refers instead to an author's right not to have another identified as the author of his or her work,208 as well as his or her right not to have such work altered by another and dealt with so as to indicate that the alterations were made by the latter.209 Separately, the author's right of integrity to a work is defined as the right not to have the work subject to derogatory treatment,210 or that which results in a material distortion, mutilation or alteration to the work, or otherwise, that is prejudicial to the author's honour and reputation.211 Moral rights in Australia can be similarly infringed through the undertaking of the content-generative activities discussed in the paragraph above.

Even where content resulting from generative activities on social media meets the subsistence requirements under copyright laws for authorship, originality and fixation – and is henceforth copyright protected – users who are authors of content on social media will not be entitled to the moral rights specified under the *VARA.* This is because digitised content on social media falls outside the narrow definition of works of visual art under the *VARA*. 212 Although moral rights have a broader scope of application in the UK than in the US, there is a requirement of assertion to be fulfilled213 in relation to the right of attribution. Typically, this requirement will not be met on social media.214

The right of attribution has, however, a broader scope of application in Australia, given the lack of a requirement of assertion there. Therefore, with reference to copyright laws in the UK or in Australia, a user will hold moral rights (other than the right of attribution in the UK) to content resulting from his or her generative activities on social media, provided that other subsistence requirements under the respective copyright laws are met. Such moral rights can be infringed when other social media users interact with this content, through modifying and disseminating such content.

There are alternative avenues to protect the rights of attribution of authors in each of the US, the UK and Australia. They are, however, imperfect215 and subject to the satisfaction of substantive requirements under the relevant rights management provisions. Under the *Digital Millennium Copyright Act* (*DMCA*),216 the *intentional removal* or *alteration* of 'copyright management information' – by a person knowing, or having reasonable grounds to know, that the removal or alteration will, among others, facilitate or conceal an infringement of any right – is prohibited. The term 'copyright management information' is defined to include the information conveyed in connection with digital copies or displays of a work, such as the name of and other identifying information about the author or the copyright holder of the work, as well as about the writer, performer or director of an audiovisual work (with the exception of public performances of works by radio and television broadcast stations).217

'Copyright management information' is interpreted to extend to any information embedded in a copyright work, independent of the use of an automated copyright protection or management system to do so – this includes, for instance, information crediting the author of a photograph.218 The copyright management provisions allow for the enforcement of moral rights – in particular, the right of attribution219 – except that such rights to prevent the removal or alteration of 'copyright management information' extend more broadly to other categories of works220 beyond works of visual art under the *VARA*.

It has been suggested that the provisions are ineffective in ensuring, among other things, the maintenance of authorship attribution, as many claims against the alteration or removal of 'copyright management information' are likely to flounder on the statutory double intent standard.221 There is, first, a requirement of knowledge (or reasonable grounds for such knowledge) for the removal or alteration to, inter alia, facilitate or conceal copyright infringement, and secondly, another requirement of knowledge that the information is removed or altered without the copyright holder's authorisation.222 Thus, so long as the double intent standard is met, these provisions are breached in similar circumstances to those in which the moral right of attribution is infringed (for instance, when the commentary of a Facebook user is plagiarised by another or when the information identifying the author of an image digitally created and shared on Pinterest is removed).

The equivalent provision to this under the *UK Copyright Act* refers to the rights of a copyright holder against a person's *knowing removal* or *alteration* of 'electronic rights management information' that is associated with a copy of a copyright work, or appears in connection with the communication of the copyright work to the public, by a person who knows, or has reason to believe, that by doing so, he or she is, inter alia, facilitating or concealing a copyright infringement.223 Further, it is required that the person knows that he or she has no authority from the copyright holder to do so.224

Also, the rights management provisions extend to prohibit the removal or alteration of such information when a person, among other things, distributes or communicates to the public copies of a copyright work.225 The term 'rights management information' is similarly defined to include information which identifies the author or the copyright holder of the work.226 These provisions are breached where the moral right of attribution227 is infringed, in the same situations as those highlighted above. Just as in the US, the double intent standard needs to be satisfied for the prohibition to apply.228

At the same time, under the *Australian Copyright Act*, a copyright holder can bring an action against a person who *removes* or *alters* electronic rights management information relating to a work or subject matter – if the person knew, or ought reasonably to know, that such removal or alteration would, inter alia, facilitate or conceal a copyright infringement of the work or subject matter.229 In addition, the person has removed or altered the information without the permission of the copyright holder.230 This right to bring an action extends to when such person, among other things, distributes or communicates a copy of the work or subject matter to the public in which the electronic rights management information has been removed or altered.231 The term 'electronic management rights information' is defined to refer to *electronic* information that is attached to, or embodied in, a copy of the work or subject matter, or appears in connection with a communication of such work or subject matter, and which, among other things, identifies the author or copyright holder of the work or subject matter.232 Again, the right to bring an action potentially arises where the moral right of attribution is infringed.233 This can happen in relation to the examples given earlier, so long as the double intent standard is satisfied (as in the US and the UK).234

#### G. Infringement: remedies

Where there is infringement of copyright-protected content on social media, the next step will be to ascertain the remedies available to the relevant copyright holder. This consequentially highlights the risks that users face in undertaking content-generative activities that potentially infringe the copyrights held by others. Generally, if a copyright work originated in the US, or in a country with which the US does not have copyright treaty relations, registration is a pre-requisite to the commencement of copyright infringement actions.235 In addition, the requirement of timely registration (ie, before commencing an action for infringement of copyright in an unpublished work, *or* within three months after the first publication of the published work) has to be satisfied if the copyright holder intends to elect to recover statutory damages,236 in addition to the usual remedies of inter alia, injunctions, damages and account of profits.237

The implications of registration (and non-registration) are significant, particularly if one considers that the statutory damages recoverable with respect to infringement for any one work is in a wide range – between US\$ 750 and US\$ 30,000, 'as the court considers just'.238 Additionally, if the copyright holder proves wilful infringement, the court may in its discretion award up to US\$ 150,000 of statutory damages.239 A case where the maximum statutory damages were awarded is *Agence France Presse v Morel* (*Morel*).240 In this case the jury found that there was wilful infringement by the news agencies of the photojournalist Daniel Morel's copyrights in his eight photographs of the Haitian earthquake shared on Twitter. Morel was awarded in excess of US\$ 300,000 in actual damages and profits, as well as the maximum US\$ 1.2 million in statutory damages (based on the award of US\$ 150,000 for each of the eight photographs).241 Notwithstanding that infringing users are potentially subject to hefty copyright damages – in view of the availability of a large volume of content, including the images shared on social media, and the ease with which images can be extracted for publication offline (as illustrated by the *Morel* case) – registering copyrights in the content on social media may not be an easy burden for copyright holders to discharge, particularly within the short time frame of three months provided.242

On the other hand, it is not necessary to register for copyright protection in the UK and in Australia, nor are there any registration systems in these countries. In the UK the remedies available to copyright holders include injunctions, damages and accounts of profits.243 Where the defendant in an action for infringement did not know, and had no reason to believe, that copyright subsisted in the work, the copyright holder is not entitled to damages, but can still be awarded an injunction and/or account of profits.244 Additional damages may be awarded in special circumstances, as 'the justice of the case' requires.245 Such circumstances considered by the court include the flagrancy of the infringement and the defendant's benefit from the infringement.246

Similarly, in Australia either damages or an account of profits can be awarded, together with an injunction, to compensate copyright holders whose copyrights are infringed.247 Damages are not available to a copyright holder, if the defendant in question was not aware, and had no reasonable grounds to suspect, that his or her act constituted an infringement. In such a situation, an account of profits may be awarded instead.248 Additional damages, if appropriate in the specific circumstances, can also be awarded.249 The circumstances considered in Australia in the court's assessment of damages are wider than those in the UK. They include, in addition to the flagrancy of the infringement and the defendant's benefit from the infringement, the conduct of the defendant after the infringing act and whether the infringement involved the conversion of a work or other subject matter from hard copy into digital form.250

Therefore, under the *US Copyright Act*, copyright holders of content251 on social media can choose to register their content, prior to commencing copyright infringement actions against their respective defendants. The millions of users interacting with such content on social media on an everyday basis are therefore vulnerably positioned, as they are exposed to potentially massive awards of statutory damages. In contrast, under the *UK Copyright Act* and *Australian Copyright Act*, the quantum of damages awarded (whether ordinary or additional) does not fall within as wide a range as the statutory damages in the US.252 Moreover, defendant-users may be able to establish, within the social media context, that they had no reasonable grounds to suspect that copyright subsisted in the (allegedly) infringed works253 *or* that their acts constituted infringement.254 If that is the case, social media users who infringe the copyrights of others through their content-generative activities will likely be subject to the imposition of injunctions and/or accounts of profits, instead of damages.

#### H. Infringement: fair use and fair dealing exceptions

Users who infringe the copyrights held by others when they engage in content-generative activities on social media can consider whether their uses are exempt from copyright infringement under copyright exceptions, such as the fair use and fair dealing exceptions.255 Through permitting some exercise of the copyright holders' exclusive rights by others, even without their consent, these copyright exceptions balance the rights of copyright holders to remuneration against the public's interest in accessing copyright-protected works. These exceptions have been argued to create space for cultural engagement on social media by allowing for the re-interpretation and remixing of copyright-protected content.256

Content-generative activities undertaken by users on social media platforms can give rise to concerns of the infringement of more than one right. For example, when a user creates a collage with photographs taken by others of sculptures, including private sculptures, he or she potentially infringes multiple rights under the *US Copyright Act*. 257 The scope of copyright exceptions becomes a more pressing concern than before, because the creation, modification and dissemination of content on social media often – as illustrated earlier – involve the rights to reproduce,258 to make available (in the US)259 and to communicate to the public (in the UK260 and in Australia).261 The possibilities for infringement increase in proportion to the frequency of these activities. As noted above, the prospect of statutory damages is a particularly grave concern for potential infringers.

In this respect, the fair use doctrine in the US serves as a safety valve against the rigid application of copyright laws and remedies.262 It exempts uses for purposes such as criticism, comment, news reporting, teaching, scholarship and research from copyright infringement, as well as acts of parody, satire and even artistic appropriation.263 Further, in ascertaining whether the use made of a work is a fair use, the four factors to be considered include: the purpose and character of the use; the nature of the copyright work; the substantiality of the portion used in relation to the copyright work; and the effect of the use on the potential market for or value of the copyright work.264

At the same time the 'transformative-ness' (of a use) – or the alteration of the original work with new expression, meaning or message265 – has been recognised as a key element of the fair use analysis in the US.266 Broad categories of transformative uses demonstrating a change in purpose or character under the fair use doctrine267 have been identified.268 These include, among other things: commenting on or criticising the original work, or targeting the original work for parody;269 using the original work to comment on something else;270 re-contextualising the original work through changing the meaning of the work;271 and changing the purpose of the original work within an expressive context.272 Although a large number of content-generative activities on social media are arguably for purposes such as criticism and comment, it will be impossible to predict which specific activity is exempt as fair use and which is not, as each of the four factors can be decided differently on the facts of each case. Unsurprisingly then, the application of the doctrine confounds not only judges,273 but also users of content.

The fair dealing exceptions in the UK and in Australia exempt specified categories of purposes from copyright infringement. Although a balance is also sought between the private interests of copyright holders and the wider public interests in the dissemination of ideas, British and Australian legislators have taken a more prescriptive approach. In the UK there are fair dealing exceptions for the purpose of research and private study,274 as well as for the purpose of criticism, review and news reporting.275 These exceptions are conditional on a sufficient acknowledgement being made, except in respect of fair dealing for the purpose of private study.276 Further, fair dealing exceptions for the purposes of quotation, as well as for caricature, parody or pastiche, were introduced recently, pursuant to *The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014.*277 Unlike the newly extended fair dealing exception for the purpose of criticism, review, *quotation* and news reporting, there is no requirement of acknowledgement under the new fair dealing exception for the purpose of caricature, parody or pastiche.278

In Australia the fair dealing exceptions are similar and are for the purposes of criticism or review,279 reporting news280 and research or study.281 An additional category of fair dealing for the purpose of parody or satire282 was introduced under the *Copyright Amendment Act 2006*. 283 As in the UK, the application of the fair dealing exceptions for the purposes of criticism or review, or for reporting news, are conditional upon giving the requisite acknowledgement of the relevant copyright work – there is no similar condition in relation to the fair dealing exception for the purpose of parody or satire.284 It is worth noting that the Australian Law Reform Commission has recommended in its report on copyright reform that the fair use exception be introduced as an extension of Australia's existing fair dealing exceptions.285 This recommendation has recently been provisionally endorsed by the Productivity Commission in its Draft Report on Intellectual Property Arrangements.286

Among these available categories of fair dealing in the UK and in Australia, I argue that the fair dealing exception for the purpose of research or study will be of lesser use to users keen to defend their contentgenerative activities undertaken on social media platforms against copyright infringement than the exceptions for other purposes. In particular, the fair dealing exceptions for the purposes of caricature, parody or pastiche in the UK,287 as well as for parody or satire in Australia288 respectively, are arguably the most relevant to social media users. This is in view of the nature of the content-generative activities in which they engage on social media. Taking the example of Australia, before the new exception was introduced into the *Australian Copyright Act* in 2006, the other fair dealing exceptions, including the exception for the purpose of criticism or review,289 were hard to rely on to excuse parodic or satirical uses due to their restrictive interpretations.290

Notwithstanding this, both fair dealing exceptions – whether for the purpose of caricature, parody or pastiche in the UK *or* for the purpose of parody or satire in Australia – are still untested by litigation.291 In addition, the terms 'caricature, parody or pastiche', as well as 'parody or satire', remain undefined in their respective statutes, giving courts a considerable scope to interpret these terms. In this respect, as a pastiche refers to a work made from a selection of materials and styles from one or more sources,292 its broader meaning may make the 'caricature, parody or pastiche' defence in the UK more suited for exempting uses – particularly when users modify content on social media – than the 'parody or satire' defence in Australia.

On the other hand, however, the newly extended fair dealing exception for the purpose of quotation (whether for criticism, review or otherwise) in the UK may be of limited use in exempting social media uses. This is given that it is conditional upon: the availability of the original work to the public; the use of the quotation being a fair dealing of the work; the extent of quotation being no more than is required for its specific purpose; and its accompaniment by a sufficient acknowledgement (unless this is impossible for reasons of practicality or otherwise).293 On the face of it, while the first condition may be easily satisfied on social media, the same cannot be said for the other three conditions.294

On the whole, because the fair dealing exceptions in the UK and in Australia are more prescriptive than the fair use doctrine in the US, ascertaining whether a use is exempt as a fair dealing exception is more straightforward. Nonetheless, this too involves addressing questions of degree and impression, and can reasonably lead to different determinations.295

#### I. Conflict of laws issues

Before social media users can ascertain whether they have infringed the copyrights held by others, they have to decide which laws govern the subsistence of copyright in the relevant content, as well as their potentially infringing activities. In general, the expansion of digital communications compromises the reach and practicality (of enforcement) of territoriality-based domestic copyright laws.296 The rapid generation of huge volumes of content on social media exacerbates the problems introduced by the fact that cyberspace is inherently borderless. Due to the global reach of social media platforms, the creation, modification and dissemination of content consequentially occur among users situated in different jurisdictions. However, the principle of territoriality to which copyright laws are subject makes it difficult to localise any dispute around content on a social media platform to a single jurisdiction.

These transnational disputes occur, for example, when the copyright in a work held by a copyright holder in the US is infringed by users resident in other jurisdictions, such as the UK and Australia. If the infringement action is commenced in either the UK or Australia, reference may be made to the rights of the copyright holder of such work in the US. On the other hand, if the action is instead commenced in the US, it will be related to infringing activities occurring outside the US, including but not limited to the UK and Australia (given the nature of the internet).297 A user is exposed to the challenge of identifying which copyright laws apply and hence faces greater uncertainty over the legitimacy of the content-generative activities he or she undertakes.298

Currently, there is no clear direction provided under existing international conventions, or otherwise, on the private international law of intellectual property. It has been suggested that this lack of direction may explain why provisions in international intellectual property instruments resembling conflicts principles are sometimes adopted without any attempt to relate them to any coherent principle of private international law.299 For instance, while the principle of national treatment stipulated in article 5(1) of the *Berne Convention* requires the country in which protection is claimed to treat foreign and domestic authors alike, it is not read as a conflicts rule.300 Also, notwithstanding the reaffirmation of the principle of national treatment in article 3(1) of the *TRIPS Agreement*, the article is seen to operate as a constraint on the choice of law rules that a country adopts rather than as a mandate of a particular rule.301

In addition, the view that article 5(2) of the *Berne Convention* endorses the *lex loci protectionis* (ie, the law of the jurisdiction for which protection is sought) is the majority view, but one not without its detractors.302 The international flow of copyright-protected content and the ubiquity of content disseminated online – both effects amplified on social media – have evoked doubts around the applicability of the *lex loci protectionis* choice of law rule, given that *lex loci protectionis* may not capture the complete set of 'affinities', or connecting factors, that govern the conduct of users online.303 As such, the breadth of private international intellectual property law today gives little guidance to potential litigants involved in copyright disputes relating to content on social media.

There are, however, initiatives that have proposed possible solutions regarding the jurisdiction, choice of law and the enforcement of judgements in transnational intellectual property disputes, such as the principles adopted by the American Law Institute (*ALI Principles*) in 2007304 and the Principles on Conflict of Laws in Intellectual Property prepared by the European Max Planck Group (*CLIP Principles*) in 2011.305 Under both the *ALI Principles*306 and the *CLIP Principles*, 307 a person may be sued in any state in which he or she is resident. The same person can also be sued in any state in which he or she has acted to initiate or further the alleged infringement, *or* if such person has directed his or her activities to that state.308 Thus there is more than one jurisdiction in which the action can be commenced. Finally, there are rules dealing with ubiquitous infringement under both sets of principles that recognise the problem of having a multitude of applicable laws and attempt to solve that by referring to the law or laws of the state or states with the closest connection to the dispute.309 The difference between the two is that the *ALI Principles* refer to both parties,310 but the *CLIP Principles* refer mainly to the infringer's location.311 Even with the guidance of these principles, the factors taken into account to ascertain the state (and hence the applicable law) having the closest connection with the infringement – including the residency of the parties312 (*or* the infringer),313 as well as the principal markets toward which the parties directed their activities314 (*or* the place where the harm caused by the infringement is substantial in relation to the infringement in its entirety)315 – will prove challenging to identify in the case of social media.

While there are no clear answers, the following preliminary questions could guide a copyright holder in ascertaining where he or she can enforce his or her rights in relation to content-generative activities on social media:


In the next chapter, I will discuss how the terms of service of social media platforms attempt to address some of the above questions and the resulting implications for social media users.

#### J. Summary

Table 2.1 below serves as a summary of the above discussion relating to the application of copyright laws in the US, the UK and Australia to the content-generative activities of social media users, and the unique challenges arising from such application.



**Table 2.1** *(Cont.)*


#### Limited definitions of 'publication'

**No.** **Copyright** 

**issues**

(ie, distribution of copies … by sale or other transfer of ownership) and 'copies' (ie, material objects) apply, such that content on social media is taken to be unpublished – copyright subsists irrespective of the nationality or domicile of the author

**US**

Therefore, there is no need to determine the precise venue of first publication or fixation

Definitions of 'publication' and 'copying' much broader, such that content on social media will constitute published works – copyright will only subsist if the author is a British citizen or resident, or if the country of first publication is the UK

**Jurisdictions**

**UK** Need to determine the precise venue of first publication, if the requirement of nationality or domicile is not met

Definition of 'publication' is broadly defined, such that content on social media will constitute published works – copyright will only subsist if the author is an Australian citizen or resident, or if the country of first publication is Australia

**Australia**

Need to determine the precise venue of first publication, if the requirement of nationality or domicile is not met

Furthermore, the venue of first publication may be hard to ascertain on social media

**Other comments**

In the US, this issue is obviated from consideration. In the UK and in Australia identifying the venue of first publication may be needed – although this problem is mitigated in view of the principle of national treatment in the *Berne Convention* and the convention's wide membership

So long as the user is a national or resident of a *Berne Convention* country, the content is likely to be copyright protected if other subsistence requirements are met, regardless of where the content is first published (if published)

> *(continued)*

**Table 2.1** *(Cont.)*

Right to prepare derivative

works (applies to, inter alia, all

Right to make adaptations of works, or to do

anything in relation to

but not artistic works)

May be exercised when

instance, the translation

of a literary work, conveying a story in a different

arranging or transcribing a

musical work, and so on)

version with pictures,

undertaking contentgenerative activities (for

these adaptations (applies

Right to make adaptations of

Given the differences in the definitions of a 'derivative work' in the US and 'adaptation' in the UK

newgenrtpdf

and in Australia, the right to make adaptations or

potentially relevant for consideration in relation to

different types of content-generative activities on

social media

to do anything in relation to such adaptations is

relation to these adaptations

(applies to, inter alia, literary,

dramatic and musical works,

May be exercised when undertaking content-generative activities

(for instance, the translation of a

literary work, conveying a story

in a different version with pictures, arranging or transcribing a

musical work, and so on)

but not artistic works)

works, or to do anything in

to, inter alia, literary, dramatic and musical works,

the categories of works listed

above) – note the preparation

of a derivative work, even

prior to fixation, can be an

Uncertainties as to whether

material derived from original

work which does not qualify for

copyright protection separately

the derivative work's right

as a secondary work can infringe

infringement


Right to prepare derivative works (applies to, inter alia, all the categories of works listed above) – note the preparation of a derivative work, even prior to fixation, can be an infringement

**US**

Right of reproduction (applies

to, inter alia: literary, musical

and dramatic works; pictorial,

graphic and sculptural works;

motion pictures and other audiovisual works; sound recordings; and architectural works)

Note that the term 'copies' is

liberally defined to refer to

material objects in which a

work is fixed, and from which

a work can be communicated,

either directly or with the aid

of a machine or device

**No.**

5 **Copyright** 

**issues**

Scope of

protection

Right to make adaptations of works, or to do anything in relation to these adaptations (applies to, inter alia, literary, dramatic and musical works, but not artistic works)

**Jurisdictions**

**UK**

Right of reproduction

(applies to, inter alia,

literary, dramatic,

musical and artistic

works, as well as films)

Note that the references

to 'copying' are broad and

can include the storing of

a work in any medium by

electronic means, as well

as the making of copies

that are transient or incidental to some other use

of the work

**Australia**

Right of reproduction (applies

to, inter alia, literary, dramatic,

musical or artistic works, as well

as to sound recordings and cin-

Note that in relation to this

right, references are made to

conversion into or from a digi-

ematograph films)

tal format

Right to make adaptations of works, or to do anything in relation to these adaptations (applies to, inter alia, literary, dramatic and musical works, but not artistic works)

Given the differences in the definitions of a 'derivative work' in the US and 'adaptation' in the UK and in Australia, the right to make adaptations or to do anything in relation to such adaptations is potentially relevant for consideration in relation to different types of content-generative activities on social media

**Other comments**

The right of reproduction in the US, the UK and

Australia can be infringed when users engage in

some content-generative activities on social media

Uncertainties as to whether material derived from original work which does not qualify for copyright protection separately as a secondary work can infringe the derivative work's right

May be exercised when undertaking contentgenerative activities (for instance, the translation of a literary work, conveying a story in a different version with pictures, arranging or transcribing a musical work, and so on)

May be exercised when undertaking content-generative activities (for instance, the translation of a literary work, conveying a story in a different version with pictures, arranging or transcribing a musical work, and so on)

> *(continued)*

**Table 2.1** *(Cont.)*

Right to perform (applies to,

dramatic works, motion pictures, other audiovisual works

and sound recordings [ie, by

digital audio transmission])

and the right to display (applies

to, inter alia, literary, musical

and dramatic works, pictorial,

graphic and sculptural works,

as well as individual images of

motion pictures and other audiovisual works). Note that 'audiovisual works', as well as what

it means to perform or display a

work publicly, are very broadly

defined – these rights are frequently exercised on

social media

inter alia, literary, musical and

Right to perform, show

Right to perform a work in public (applies to, inter alia, literary, Among the bundle of rights, the rights to reproduce, to make available in the US (ie, to distribute, newgenrtpdf

perform and display) and to communicate in the

UK and in Australia are the most relevant rights

activities on social media

for consideration in relation to content-generative

dramatic and musical works)

and the right to communicate

a work to the public (applies

musical and artistic works) –

note that the terms 'performance' and 'communicate' are

tronic transmissions

public)

social media

to, inter alia, literary, dramatic,

defined broadly to include elec-

Equivalent rights are available in

respect of sound recordings and

cinematograph films (ie, right

to cause to be seen or heard in

public [as applicable], as well as

the right to communicate to the

In particular, the right to communicate is frequently exercised on

or play a work in public

(applies to, inter alia,

literary, dramatic and

musical works, sound

recordings, films and

broadcasts) and the right

to communicate a work

to the public (applies to,

works, sound recordings,

perform, show or play, as

well as the right to communicate, is defined very

broadly to include electronic means and transmissions. In particular,

the right to communicate

is frequently exercised on

social media

films and broadcasts) –

note that the right to

inter alia, literary, dramatic, musical and artistic


Right to perform (applies to, inter alia, literary, musical and dramatic works, motion pictures, other audiovisual works and sound recordings [ie, by digital audio transmission]) and the right to display (applies to, inter alia, literary, musical and dramatic works, pictorial, graphic and sculptural works, as well as individual images of motion pictures and other audiovisual works). Note that 'audiovisual works', as well as what it means to perform or display a work publicly, are very broadly defined – these rights are frequently exercised on social media

**No.** **Copyright** 

**US**

Right to distribute (applies to,

inter alia, all the categories of

works listed above). Note that

this right is broadly interpreted

such that digital transmission

(including the transmission

this right

of content on social media) is

included within the exercise of

**issues**

Right to perform, show or play a work in public (applies to, inter alia, literary, dramatic and musical works, sound recordings, films and broadcasts) and the right to communicate a work to the public (applies to, inter alia, literary, dramatic, musical and artistic works, sound recordings, films and broadcasts) – note that the right to perform, show or play, as well as the right to communicate, is defined very broadly to include electronic means and transmissions. In particular, the right to communicate is frequently exercised on social media

**Jurisdictions**

**UK**

Right to issue copies to

the public (applies to,

inter alia, literary, dramatic, musical and artistic

works, as well as sound

recordings and films).

of this right excludes

of copies already put

this right will not be

Note that the description

subsequent distribution

into circulation; as such,

infringed by the regular

dissemination of content

on social media (insofar

involves content already

as such dissemination

circulated)

**Australia**

Right to (first) publish (applies

to, inter alia, literary, dramatic,

musical and artistic works) –

distinguished from the notion

of publication for the subsist-

This right will only be infringed

in limited circumstances (ie,

in relation to content that has

not been made available to the

ence of copyright

public)

Right to perform a work in public (applies to, inter alia, literary, dramatic and musical works) and the right to communicate a work to the public (applies to, inter alia, literary, dramatic, musical and artistic works) – note that the terms 'performance' and 'communicate' are defined broadly to include electronic transmissions

Equivalent rights are available in respect of sound recordings and cinematograph films (ie, right to cause to be seen or heard in public [as applicable], as well as the right to communicate to the public)

In particular, the right to communicate is frequently exercised on social media

Among the bundle of rights, the rights to reproduce, to make available in the US (ie, to distribute, perform and display) and to communicate in the UK and in Australia are the most relevant rights for consideration in relation to content-generative activities on social media

**Other comments**

The rights to distribute in the US can be infringed

The rights to issue copies to the public in the UK,

infringed by the usual dissemination of content on

as well as to (first) publish in Australia, are not

by the usual dissemination of content on

social media

social media

*(continued)*

**Table 2.1** *(Cont.)*

Under the right of integrity, the

Right of integrity to work

Under the right of integrity,

the right not to have the work

(further defined to mean anything that results in, inter alia, a

reputation)

treated

films)

subject to derogatory treatment

distortion to the work or is prejudicial to the author's honour or

Clearly stipulated that the right

of integrity is violated by a person who engages in various acts

in respect of the derogatorily

In general, moral rights are of a

broader application as they are

held by copyright holders in a

and artistic works, as well as

broader range of works (including literary, dramatic, musical

(which can be violated

when a modified work

is, inter alia, distorted or

otherwise prejudicial to

the honour or reputation

of the author of a work,

In general, moral rights

are of a broader application as they are held by

copyright holders in a

broader range of works

(including literary, dramatic, musical and artistic

works, as well as films)

or director of a film)

right of an author to prevent

use of his or her name when

there is distortion of a work

or her honour or reputation

that would be prejudicial to his

Under the right of integrity, the

right to prevent modification of

prejudicial to his or her honour

his or her work that would be

Under the right of integrity,

the right to prevent any

negligent destruction of a

work of recognised stature

intentional or grossly

or reputation


Under the right of integrity, the right of an author to prevent use of his or her name when there is distortion of a work that would be prejudicial to his or her honour or reputation

**US**

Moral rights of attribution and

integrity apply only to works of

Right of attribution – possibly

Right against false attribution

broad enough to object to

misattribution

visual art

**No.**

**6** **Copyright** 

Other rights

**issues**

Under the right of integrity, the right to prevent modification of his or her work that would be prejudicial to his or her honour or reputation

Right of integrity to work (which can be violated when a modified work is, inter alia, distorted or otherwise prejudicial to the honour or reputation of the author of a work, or director of a film)

**Jurisdictions**

**UK**

Moral rights of attribution

and integrity apply to,

inter alia, literary, dramatic, musical and artistic

works, as well as films

Right of attribution – note

that right against misattribution assumed to

exist, even if not clearly

Right against false

Not withstanding the

above, there is a requirement of assertion (ie, that

the author or director has

asserted his or her moral

right of attribution)

provided for

attribution

**Australia**

Moral rights of attribution and

integrity apply to, inter alia,

and artistic works, as well as

Right against false attribution

(note that this refers instead to

in the US and in the UK [ie, the

what is called misattribution

right of an author or director

not to have another identified

as the author or director of his

No requirement for assertion

or her work or film])

literary, dramatic, musical

cinematograph films

Right of attribution of

authorship

In general, moral rights are of a broader application as they are held by copyright holders in a broader range of works (including literary, dramatic, musical and artistic works, as well as films)

Under the right of integrity, the right to prevent any intentional or grossly negligent destruction of a work of recognised stature

Under the right of integrity, the right not to have the work subject to derogatory treatment (further defined to mean anything that results in, inter alia, a distortion to the work or is prejudicial to the author's honour or reputation)

Clearly stipulated that the right of integrity is violated by a person who engages in various acts in respect of the derogatorily treated

In general, moral rights are of a broader application as they are held by copyright holders in a broader range of works (including literary, dramatic, musical and artistic works, as well as films)

> *(continued)*

**Other comments**

Users who are authors of content on social media

will not hold moral rights to such digitised content, which falls outside the definition of works of

On the other hand, users who are authors of content on social media can hold moral rights in their

under both the *UK Copyright Act* (other than the

right of attribution, as the requirement of assertion will not likely be fulfilled) and the *Australian* 

*Copyright Act*, provided that other copyright subsistence requirements are met – these moral rights

of attribution and integrity can conceivably be

infringed when users interact with such content,

through modifying and disseminating the content

content resulting from content-generative activities

visual art under the *VARA*


Statutory damages recoverable

Note that damages are not

Note that damages are not

likely to be awarded when the

Also, in the UK and in Australia, defendant-users

newgenrtpdf

may be able to defend themselves against awards

subsisted in the relevant content on social media,

or that they had no reasonable grounds to suspect

Unpredictability around the application of the fair

use doctrine in the US to the content-generative

The fair dealing exceptions for the purpose of

caricature, parody or pastiche in the UK, and for

the purpose of parody or satire in Australia, are

the more relevant defences to social media users –

although both are untested, the UK defence is possibly wider than its Australian counterpart

that their acts were infringing

activities of social media users

of damages for infringement, through establishing that they had no reason to believe copyright

defendant was not aware, and

had no reasonable grounds to

suspect, that his or her act constituted an infringement

Fair dealing exceptions (ie,

for the purposes of criticism

parody or satire)

or review, reporting news and

likely to be awarded when

know, and had no reason

to believe, that copyright

subsisted in the relevant

Fair dealing exceptions

(ie, for the purposes of

criticism, review, quotation and news reporting,

as well as caricature,

parody or pastiche)

work

the defendant did not

US\$ 750 and US\$ 30,000, with

respect to an infringement for

in a wide range of between

In the case of wilful infringement, court can award up to US\$

150,000 of statutory damages

any one work

Fair use doctrine

8 Defences such

as fair use and

fair dealing



**Jurisdictions**

**UK**

Right against a person's

knowing removal or alteration of 'electronic rights

management information',

which is associated with a

copy of a copyright work

or appears in connection

with the communication

to the public of a copyright

work (includes a literary,

dramatic, musical or artistic work, broadcast, sound

recording or film)

No registration

Grant of injunctions,

of profits are possible

damages and/or accounts

requirement

remedies

**Australia**

removal or alteration of 'electronic rights management

information relating to a work

or subject matter (includes a

literary, dramatic, musical or

artistic work, sound recording

No registration requirement

Grant of injunctions, damages

and/or accounts of profits are

possible remedies

or cinematograph film)

Right against a person's

**Other comments**

moral right of attribution is infringed, except that

there is a requirement for knowledge (or reasonable grounds for knowledge or belief) that the

removal or alteration will, inter alia, facilitate

or conceal a copyright infringement, in addition

alteration is done without the authorisation of the

copyright holder – the relevant provisions provide

an alternative avenue for the enforcement of the

rights of attribution, albeit imperfect and subject

Registration requirement in the US is not an easy

burden to discharge, but when discharged, a very

large sum of damages can be awarded if infringe-

Users are therefore exposed to a wider range of

statutory damages in the US than in the UK and

Australia (although the awards of additional dam-

ment is found to be wilful

ages can still be high in Australia)

to the satisfaction of the double intent standard

to the requisite knowledge that the removal or

These rights arise for enforcement where the

**No.**

7 **Copyright** 

Remedies for

infringement

**US**

Right to prohibit the removal or

alteration of 'copyright management information' – the relevant provision allows for the

enforcement of moral rights,

broadly to other categories of

works (ie, literary, musical, dramatic, pictorial, graphic, sculptural and audiovisual works, as

well as sound-recordings, architectural works, compilations

Registration is a pre-requisite

to the institution of copyright

Additional requirement of

timely registration for statutory damages (ie, three months

after the first publication of a

an unpublished work)

work, or before the commencement of a copyright action for

and derivative works)

infringement actions

except that it extends more

**issues**

#### **Table 2.1** *(Cont.)*


### II. Scenario one: the application of copyright laws

The case study of Jane in Chapter One serves as the basis on which the copyright laws discussed in this chapter can be applied to the contentgenerative activities undertaken by Jane and other users. Jane's day will be dissected to allow for a consideration of the copyright issues arising from each activity she and other users undertake, in chronological order. I then consider the possible grounds of liability and whether exceptions apply under the respective copyright laws for each activity. For this purpose, I assume that the relevant connecting factors for protection under each law (nationality, residence, place of first publication and so on) are met.316

A. Jane's use of the music video clip on YouTube as her morning alarm

Under the *US Copyright Act* the video clip in its entirety is a copyrightprotected 'audiovisual work'; the lyrics in it constitute a literary work, while the music in it constitutes a musical work. This same video clip is a copyright-protected film comprising a literary work (ie, in the lyrics) and a musical work (ie, in the musical score) under the *UK Copyright Act* and the *Australian Copyright Act*. I argue that Jane's use of the video clip infringes the right of *reproduction* in the US, the UK and Australia.317

Although the right of reproduction is arguably infringed, Jane's use is likely to qualify as a fair use in the US. Given that her use is private and non-commercial, at least two of the four fair use factors – the purpose and character of use, as well as the effect of the use on the potential market for the copyright work – are likely to tip the balance in her favour.318 This is in spite of the possibility that another factor, being the substantiality of the portion used,319 does otherwise. In the UK Jane's use does not fall within the fair dealing exceptions, including the exceptions for the purposes of criticism, review, quotation and news reporting,320 *or* caricature, parody or pastiche.321 Furthermore, the private copying exception under *The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014*322 is fairly narrow and may not excuse Jane's use. Although Jane makes a personal copy for private use each time she uses the video clip as her morning alarm, I argue that she does not satisfy the condition of having lawfully acquired the video clip on a *permanent* basis, by her use of the relevant application on her mobile phone. Finally, Jane's use is not exempt in Australia, as her use does not fall within the fair dealing exceptions for the purposes of criticism or review,323 parody or satire,324 *or* reporting news.325 In addition, the exceptions for private and domestic uses will not apply to Jane's use for two reasons. Firstly, the video clip is not included within the categories of copyright-protected material under these private and domestic use exceptions;326 secondly, there is a condition of ownership under most of these provisions.327

The above suggests that Jane has infringed the copyright laws in the UK and Australia, but not in the US.328

### B. Jane's 'pinning' of the YouTube music video clip on her pin-board titled 'My Favourite Things' on Pinterest

Jane's 'pinning' of the video clip on Pinterest may infringe the right to *distribute*329 held by the copyright holder of the video clip under the *US Copyright Act*. The position is different under the *UK Copyright Act*, as the description of the right to *issue copies to the public*330 specifically excludes subsequent distribution of copies already put into circulation – in this case, the video clip is already shared on YouTube. Under the *Australian Copyright Act* the right to (*first*) *publish*331 is also not infringed by Jane's 'pinning', given that the video clip has already been made available to the public on YouTube.

In addition, a case can likely be made out for Jane's infringement of the copyright holder's rights to *perform* and to *display* a work *publicly* in the US;332 to *perform*, *show or play* a work *in public*, as well as to *communicate the work to the public* in the UK;333 and to *perform*, *cause to be seen or heard in public*, as well as to *communicate the work and copyright protected subject matter to the public* in Australia.334 As the audience of the video clip shared on Jane's pin-board comprises an expanding group of users who choose to 'follow' Jane or this pin-board in particular, and who can access the video clip in separate places at different times on the Pinterest platform, the requirement for performing or displaying a work 'publicly' is met in the US.335 At the same time this falls within the broad definition of a communication to the public in the UK.336 Further, the indeterminate number of Pinterest users to whom the video clip is performed, showed, played *and* communicated constitutes this 'public' in the UK,337 and also in Australia (in relation to the performance *and* causing to be seen or heard).338 Finally, Jane's use falls under the broad concept of a communication to the public in Australia.339

Jane's use is *less* likely to qualify as a fair use in the US than is the case under sub-section (A) above, as her 'pinning' of the video clip is more likely to have an adverse impact on the potential market for the video clip, even if the purpose of sharing the video clip remains noncommercial in nature. Jane's 'pinning' is similarly not exempt as a fair dealing or private use in the UK and in Australia.

The above indicates that Jane has infringed the copyright laws in all three jurisdictions.

### C. Jane's use of Evangeline's earlier commentary on Facebook to create her own commentary

Evangeline's commentary constitutes a literary work, whether in the US, the UK or Australia, if other subsistence requirements such as originality, authorship and fixation (or their equivalents) are met. In general, it will be *more* likely for the commentary to qualify for copyright protection in the UK and Australia *than* in the US, given the higher originality requirement in the last. As the author can be identified (ie, Evangeline), the requirement of authorship is not likely to pose a barrier to the recognition of the commentary as a copyright-protected literary work. In addition, fixation (and its equivalent) requirements are broadly defined, and are therefore likely to be satisfied. When the other copyright subsistence requirements are met, Evangeline's commentary will be copyright protected, whether she is a national or resident of the US, the UK or Australia.340

On the basis that the original commentary is copyright protected, I argue that Jane will not infringe Evangeline's right to *prepare derivative works*. 341 This is because Jane's commentary has to be 'substantially similar' to Evangeline's before it can be considered to be an infringing work. Given that Jane has woven her views into Evangeline's commentary to create a new one and that Evangeline's contribution is no longer identifiable in Jane's commentary, there is arguably no infringement of the derivative works right as there is no substantial similarity342 between the original commentary and Jane's new commentary.343

In the UK and in Australia, an equivalent to this right is the right to *make adaptations* of works and such an adaptation includes, among other things, the translation of a literary work.344 While the term 'translation' is not defined, Jane's creation of her own commentary using Evangeline's commentary is not a translation, by the term's ordinary meaning. In spite of the non-infringement of this right, Jane may infringe Evangeline's right to *reproduce* in both the UK and Australia,345 particularly if Jane is seen to have taken a substantial part of Evangeline's commentary.346 In this case, it will not matter if Jane's commentary is otherwise different from Evangeline's.

Additionally, I argue that Jane infringes Evangeline's right of attribution as an author of the commentary under the *Australian Copyright Act*. 347 This is not the case under the *US Copyright Act*, which applies very narrowly to works of visual art,348 or the *UK Copyright Act.* In the case of the latter, the assertion requirement in the UK349 has not been met as Evangeline has not asserted her right to be identified. This is in spite of the fact that the identity of Evangeline as the author of the commentary is known to Jane, who extracted Evangeline's commentary from her Facebook 'Timeline'.

As no rights are infringed in the US, discussing whether the fair use doctrine will apply to excuse Jane's use of Evangeline's commentary is not necessary. The UK fair dealing exception for the purpose of criticism, review, quotation and news reporting,350 as well as the Australian fair dealing exception for the purpose of criticism or review,351 could have applied to exempt Jane's use, *but for* the lack of acknowledgement of Evangeline's earlier commentary. Further, Jane's infringement of Evangeline's right of attribution (ie, non-identification of Evangeline) under the *Australian Copyright Act* is not likely to be reasonable in the circumstances.352

This suggests that Jane has infringed the copyright laws in the UK and Australia, but not in the US.

D. Jane's use of multiple photographs of newborn babies available on the pin-boards of other Pinterest users to create a collage to share on Pinterest

Under the *US Copyright Act* each of the photographs, as well as the overall collage that Jane creates, will fall under the definition of 'pictorial, graphic and sculptural' works. Under the *UK Copyright Act* and the *Australian Copyright Act,* each of the photographs and the overall collage is an artistic work.

The originality, authorship and fixation (or their equivalents) requirements are easily met for copyright to subsist in the individual photographs and in the collage. The collage is not however a 'joint work' in the US, as the mutual intention of the individual authors (ie, of each photograph) to merge their works into a joint piece is absent. Similarly, in the UK and in Australia, the collage will not qualify as a 'work of joint authorship' as there is no collaboration among the authors of each of the photographs forming the collage. As such, Jane is the sole author of the collage.

Furthermore, it is noted that Jane crops only some of the original photographs, but not all, to create the collage. At first appearance, she could have exercised more than one exclusive right in the bundle of rights held by the copyright holder to each photograph, namely, the right to *reproduce*, the right to *prepare derivative works*, the right to *distribute* and the right to *display* in the US, as well as the equivalent rights in the UK and in Australia. Firstly, the discussion under sub-section (A) can be referred to in respect of the right of *reproduction* – Jane's use infringes this right under the *US Copyright Act*, the *UK Copyright Act* and the *Australian Copyright Act.*

Secondly, in respect of the right to *prepare derivative works*, because the individual components in Jane's collage can be recognised in the overall collage, there is arguably substantial similarity between each of these components (ie, photographs) and Jane's collage. Hence the right to prepare derivative works held by the relevant copyright holder(s) in the US is probably infringed. The equivalent right to *make adaptations of works* in the UK and in Australia does not apply in respect of artistic works such as photographs, therefore addressing the issue of such infringement is not necessary.

Thirdly, the discussion under sub-section (B) can be referred to in respect of the rights to *distribute* and to *display.* While Jane's sharing of the collage infringes the right to distribute in the US, the right to *issue copies to the public* in the UK and the right to (*first*) *publish* in Australia will not be infringed. On the other hand, Jane's use infringes each copyright holder's rights to display (in the US) and to *communicate the work to the public* (in the UK and in Australia).

In summary, Jane's use has infringed: the rights to reproduce, to prepare derivative works, to distribute and to display under the *US Copyright Act*; the rights to reproduce and to communicate the work to the public under the *UK Copyright Act*; as well as the rights to reproduce and to communicate the work to the public under the *Australian Copyright Act.* More than one right under the copyright laws of each jurisdiction is infringed by Jane's use. Her use may be transformative enough to qualify as a fair use under the fair use doctrine in the US, particularly as the use is non-commercial and *if* there is no market for the photographs (ie, the photographs are not taken by professional photographers who licence their use in return for fees). Regardless of the commerciality of the use or existence of a market for the photographs, Jane's use is still likely to qualify as a fair use, given that she has used the original photographs to comment on something else (ie, the ageing population),353 and that she has changed the composition, presentation and scale of the original photographs so as to have sufficiently transformed them354 in creating her collage. At the same time, the fair dealing exception for the purpose of caricature, parody or pastiche in the UK355 could exempt Jane's use, as she has created her collage – a pastiche – using selected photographs shared by other Pinterest users. However, no exceptions, including the fair dealing exception for criticism or review,356 will likely apply to exempt Jane's use in Australia. In any event, the condition of acknowledgement of the source of each photograph is not satisfied.

Based on the above, Jane has infringed the copyright laws in Australia, but not in the US and the UK.357

E. Jane's simultaneous sharing of the collage on Facebook and Twitter

The discussion under sub-section (D) can be referred to in respect of the rights to *reproduce*, to *prepare derivative works*, to *distribute* and to *display* under the *US Copyright Act*, as well as the equivalent rights under the *UK Copyright Act* and the *Australian Copyright Act*. The application of copyright exceptions such as fair use and fair dealing, as the case may be, is also similar.

For the same reasons as under sub-section (D), the above indicates that Jane has infringed the copyright laws in Australia, but not in the US and the UK.

F. Jane's sharing of the same collage in her blog post on WordPress

The discussion under sub-section (D) can be referred to in respect of the rights to *reproduce*, to *prepare derivative works*, to *distribute* and to *display*, as well as the equivalent rights under the *UK Copyright Act* and the *Australian Copyright Act.* The application of copyright exceptions such as fair use and fair dealing, as the case may be, is also similar.

For the same reasons as under sub-section (D), the above suggests that Jane has infringed the copyright laws in Australia, but not in the US and the UK.

G. Zee's contribution to Wikipedia on 'income inequality' using what Jane has written

With reference to the discussion on copyright subsistence in Evangeline's commentary under sub-section (C), the discussion in this sub-section is conducted on the assumption that Jane's commentary enjoys copyright protection as a literary work in all three jurisdictions. I argue that Zee, in contributing Jane's commentary to Wikipedia, infringes Jane's rights to *reproduce* and to *display* the commentary under the *US Copyright Act*; to *reproduce* and to *communicate her work to the public* under the *UK*  *Copyright Act*; and to *reproduce* and to *communicate her work to the public* under the *Australian Copyright Act.*

Zee also infringes a moral right – the right of *attribution* – under the *Australian Copyright Act*. This is not the case under the *US Copyright Act*, as it applies very narrowly to works of visual art.358 Further, although Zee extracted Jane's commentary from her Facebook 'Timeline' and is aware of her authorship, the assertion requirement under the *UK Copyright Act* is not satisfied, as Jane has not asserted her right to be identified. Therefore there is no infringement of this moral right in the UK.

In any case, more than one right under the copyright laws of each jurisdiction is infringed by Zee's use. The fair use doctrine in the US will arguably exempt Zee's use from infringement, as the purpose of Zee's use is non-commercial and there is no existing market for Jane's commentary.359 Neither of the fair dealing exceptions for the purpose of review or criticism, whether in the UK or in Australia,360 will apply to exempt Zee's use, given the lack of acknowledgement of Jane as the original author of the commentary. Finally, on the facts given, Zee's infringement of Jane's right of attribution under the *Australian Copyright Act* will not likely be seen as reasonable in the circumstances.361

Based on the above, Zee has infringed the copyright laws in the UK and Australia, but not in the US.362

H. Jane's creation and sharing of a new video clip by way of 'vidding' on YouTube, and subsequently on Facebook

Under the *US Copyright Act*, each of the random video clips from which scenes are extracted, as well as the new video clip Jane created, is an 'audiovisual work'. These video clips are 'films' under the *UK Copyright Act* and 'cinematograph films' under the *Australian Copyright Act.*

Copyright subsists in each video clip and in the new video clip created by Jane, so long as the originality, authorship and fixation (or their equivalent) requirements are met. However, the new video clip is not a 'joint work' in the US, as the mutual intention of the individual authors (ie, of each video clip) to merge their works into a joint piece is absent. Similarly the new video clip will not qualify as a 'work of joint authorship' in the UK and Australia, as there is no collaboration involved among the authors of the original video clips. As such, Jane is the sole author of the new video clip.

The discussion under sub-section (D) can be referred to in respect of the rights to *reproduce*, *prepare derivative works*, *distribute*, *perform* and *display* in the US, as well as the equivalent rights, as applicable, in the UK and in Australia. I argue that Jane's use infringes the rights of the copyright holder (ie, the producer of the television series) to reproduce, prepare derivative works, distribute, perform and display in the US; *reproduce, show or play* and *communicate to the public in the UK*; as well as *reproduce*, *cause to be seen or heard and communicate to the public* in Australia.

More than one right under the copyright laws of each jurisdiction is infringed by Jane's use. Jane's use will arguably not qualify as a fair use in the US. While her use is non-commercial, it may be argued to interfere with the existing market for the television series. On the other hand, the fair dealing exception for the purpose of caricature, parody or pastiche in the UK363 could exempt Jane's use as she has created the new video clip – a pastiche – through drawing on other video clips shared on YouTube. No exceptions, however, including the fair dealing exception for criticism or review,364 will apply to exempt Jane's use in Australia. In any event, the requirement for sufficient acknowledgement is not met.

The above indicates that Jane has infringed the copyright laws in the US and Australia, but not in the UK.365

### I. Cheryl's use of 'stills' from Jane's video clip as thumbnail images on her website

I discuss the extent to which each of the extracted 'stills', or individual images, is protected under the *US Copyright Act*, the *UK Copyright Act* and the *Australian Copyright Act* below.

As mentioned in sub-section (H), the individual images are extracted from 'audiovisual works' (being the random video clips, as well as Jane's new video clip) as defined under the *US Copyright Act*. These images are extracted from 'films' under the *UK Copyright Act* and 'cinematograph films' under the *Australian Copyright Act.*

At first appearance Cheryl may have exercised more than one exclusive right in the bundle of rights held by the producer of the television series in the audiovisual works from which these images are extracted – namely the rights to *reproduce*, *prepare derivative works* and *display* in the US. On further analysis, I argue that Cheryl does not infringe the right of reproduction. As she has only extracted a few images for her website, the amount she has copied from the original works is minimal and the standard of substantial similarity is not met. In addition, Cheryl does not infringe the right to prepare derivative works as there is no substantial similarity between her web page incorporating the images as thumbnails and the original audiovisual works. However, Cheryl's use does infringe the right to display the individual images from the original works. The term 'display' means, in the case of an audiovisual work, 'to show individual images nonsequentially'.366

I argue that in the UK Cheryl's use of the individual images infringes the right to *reproduce*. This is because the definition of 'copying' in relation to a film 'includes making a photograph of the whole or any substantial part of *any* image forming part of the film'.367 On the other hand, in Australia the position is less clear. Given the definition of 'cinematograph films' to be the 'aggregate of the visual images',368 as well as the nature of copyright in these films,369 no copyright appears to be infringed in relation to Cheryl's use. Notwithstanding this, the individual images are arguably protected as 'artistic works',370 and Cheryl's use infringes the rights to *reproduce* and to *communicate the works to the public*.

Based on the above, at least one right under the copyright laws of each jurisdiction is prima facie infringed by Cheryl's use. Her use is likely to qualify as a fair use in the US. Not only is her use non-commercial, such use is not one that can foreseeably interfere with the market for the television series.371 Additionally, her use of only a few images as thumbnails on her website is likely to tip the balance in her favour.372 Cheryl's use may also be transformative enough to qualify as a fair use under the fair use doctrine in the US. By using the 'stills' as thumbnail images on her website, she has arguably re-contextualised the original video clips through changing their meaning (ie, using the 'stills' from them to decorate the website). Furthermore, in using the thumbnail images for aesthetic reasons she has changed the purpose of these clips from the television series. In the UK and in Australia this is not the case, as Cheryl's use is not for a specified purpose exempt under any fair dealing exception.

Therefore this suggests that Cheryl has infringed the copyright laws in the UK and Australia, but not in the US.373

J. Other users' partial use of Jane's collage to create their own, and sharing the same on Pinterest, Facebook and Twitter

The discussion under sub-section (D) can be referred to in respect of the rights to *reproduce*, to *prepare derivative works*, to *distribute* and to *display* under the *US Copyright Act*, as well as the equivalent rights under the *UK Copyright Act* and the *Australian Copyright Act*. In particular, the rights (held by Jane in the collage and the author of each photograph used in such collage) to reproduce, to prepare derivative works, to distribute and to display in the US; as well as to *reproduce* and to *communicate the work to the public* in the UK and in Australia, are arguably infringed by other users' partial use of Jane's collage. The application of copyright exceptions such as fair use and fair dealing, as the case may be, is largely similar. In relation to the application of the fair use doctrine in the US, the users' transformation of Jane's collage may additionally be their way of commenting on, criticising or parodying Jane's collage, depending on the collages resulting from their uses. At the same time, the fair dealing exception for the purpose of caricature, parody or pastiche in the UK374 could exempt these uses, as the collages (or pastiches) are created using Jane's collage, as well as other selected materials.

Based on the above, these users have infringed the copyright laws in Australia, but not in the US and the UK.375

K. Editor Jasper's use of Jane's collage on the cover page of his magazine

As mentioned earlier, Jane's collage is a 'pictorial, graphic and sculptural work' under the *US Copyright Act*, and an artistic work under the *UK Copyright Act* and the *Australian Copyright Act.* By his use, I argue that Jasper infringes Jane's rights to *reproduce* and to *distribute* the collage in the US; to *reproduce* and to *issue copies of the collage to the public* in the UK; as well as to *reproduce*376 and to (*first*) *publish* the collage in Australia. Similar rights held by the author of each photograph used in such collage are also infringed by Jasper's use.

Given that Jasper's use of Jane's collage is commercial in nature (ie, the magazine copies will be purchased by interested readers), his use is *less* likely to be exempt as a fair use in the US. Moreover, such use will have an adverse effect upon the potential market for Jane's collage (and the photographs in the collage) *if* Jane (or the relevant author) decides to license the use of the collage (or each photograph in the collage) in return for a fee. In addition, Jasper's use is not exempt as a specified purpose under any fair dealing exception in the UK and in Australia.

This suggests that Jasper has infringed the copyright laws in all three jurisdictions.

### III. Conclusion

In this chapter I have considered the application of copyright laws in the US, the UK and Australia to the content-generative activities of social media users. This allows me to compare copyright laws with other regulatory factors on social media – namely the terms of service and the technological features – in regulating the content-generative behaviours of users. In particular, I am concerned with the consistency of the copyright regimes with each of the private regimes explored in the subsequent chapters of this book.

I have demonstrated, through my discussion of the application of copyright subsistence and infringement issues and the challenges posed to the content-generative activities on social media, as well as through scenario one, the following:


In this sense, it is not possible for any regular social media user to have the level of understanding of copyright laws required to assess the legitimacy of the content-generative activities he or she undertakes, through the application of copyright laws to these activities.

With scenario one, I have shown how the application of the copyright laws of the three jurisdictions to the same content-generative activities under the case study can result in varied positions being reached on the copyright liabilities of users based in each jurisdiction. In particular, the application of the copyright laws of the US, the UK and Australia in scenario one yields different outcomes under the *US Copyright Act*, as against the *UK Copyright Act* and the *Australian Copyright Act.* Out of a total of *eleven* content-generative activities extracted from the case study for scenario one, the application of copyright laws to as many as *nine* of these activities results in contrasting positions on the copyright liabilities of the respective users.

In the next chapter I will survey the terms of service of the five selected social media platforms that purport to regulate the contentgenerative behaviours of users. I will also assess the interaction of these terms of service with the copyright regimes in each of the US, the UK and Australia for alignment and incompatibility. I then present the second of four scenarios in the book to demonstrate how the terms of service can apply to the content-generative activities of Jane and other users in the case study.

### **Notes**


*Forening* (Court of Justice of the European Union, C-5/08, 16 July 2009) (*Infopaq*), where it was decided that the 'author's own intellectual creation' threshold for copyright protection is relevant not only to those categories of work to which it has been explicitly applied in legislation, but also to all forms of copyright-protected work under the *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* [2001] OJ L 167 (*Information Society Directive*). But see *The Newspaper Licensing Agency and others v Meltwater Holding BV and others* [2011] EWCA Civ 890 (*Meltwater*), where the court found that the *Infopaq* (Court of Justice of the European Union, C-5/08, 16 July 2009) decision did not qualify the longstanding English test of originality, and that the test of being an author's intellectual creation relates to the question of origin, rather than of novelty.


 discerned clearly, in part because the ultimate work was produced by technology. As such, it was held that copyright did not subsist in Telstra's phone directories. It was also decided that the collaboration between staff members did not warrant the deployment of the concept of joint authorship, and that the intellectual effort to organise the listings did not represent sufficient literary effort warranting protection.


in terms of time and money for photographers to protect their works through registration. In addition, he recommended giving photographers up to a year to register their works. See also United States Copyright Office, *eCO Registration System* <http://copyright.gov/eco/>, where the current processing time for the electronic filing of a copyright (registration) application is stated to take up to 8 months and that for the filing of such an application through paper forms is 13 months.


# Chapter Three Application of the terms of service

In this chapter I examine the standard terms of service (TOS) that users agree to when they use the services offered on the five selected social media platforms, namely Facebook, Pinterest, YouTube, Twitter and Wikipedia. I begin by identifying the key TOS that govern or have implications on the content-generative activities undertaken by users on these platforms. These TOS address the following: the ownership and licensing of the content generated; the copyright policies adopted by the platforms; the indemnification and limitation of liability of such platforms; and the choice of a governing law and jurisdiction. I then apply the relevant terms to the content-generative activities undertaken by Jane and other users in the case study, under the second of four scenarios in this book. My application of the TOS to each content-generative activity will not be conducted on a comprehensive basis as there is a dearth of case law in this area, particularly in the UK and in Australia.

I then examine the extent of alignment and incompatibility the TOS have with the copyright regimes in the US, the UK and Australia. The clauses that deal with the ownership and licensing of the content, as well as the copyright policies that expressly incorporate the *Digital Millennium Copyright Act* (*DMCA*)'s notice and takedown mechanism, are the most relevant with regard to the content-generative behaviours of users. While the incorporation of the *DMCA* reflects the way in which social media platforms align themselves with copyright laws (particularly those of the US, where these platforms are registered), there are three areas that give rise to potential incompatibilities between the TOS and the copyright regimes.

The other clauses identified, such as those providing for the indemnification and limitation of liability of the platforms, have implications for the content-generative activities of users. In particular, these clauses underscore the vulnerability of users who are exposed to the risks of copyright infringement through the generation of content on such platforms.

This chapter provides further support for the book's argument that current inconsistencies existing between the TOS and the copyright regimes compromise the effectiveness of those laws in regulating the content-generative behaviours of social media users. The TOS are also found to reflect the unilateral interests of the social media platforms surveyed, at the expense of their users. Finally, the application of the TOS in the chapter to the case study constitutes scenario two in the book. This allows – through a juxtaposition of the outcomes reached under scenarios one (from Chapter Two) and two (from this chapter) – for a specific evaluation of the consistency between the copyright regimes and the TOS.

### I. Terms of service

Users have to tread through a labyrinth of terms and policies set out in separate documents across multiple web pages to ascertain their rights and obligations on social media platforms, including those pertaining to their content-generative activities on such platforms. For instance, the main TOS for Facebook that outline its users' rights and responsibilities are comprised within Facebook's 'Statement of Rights and Responsibilities' (Facebook Statement).1 In addition, many links to separate documents2 are provided under the Facebook Statement, and these have a bearing on the overall position of a user when it comes to issues relating to his or her content-generative activities. The TOS for Pinterest (Pinterest Terms),3 YouTube (YouTube Terms),4 Twitter (Twitter Terms)5 and Wikipedia (Wikipedia Terms)6 are similarly presented across multiple documents. In the following sub-sections I will look at the primary types of provisions under the TOS that seek to regulate the content-generative behaviours of users on the five social media platforms surveyed. The types of provisions which otherwise have implications on these activities are also studied.

### A. Ownership and licensing

The ownership and licensing clauses under the TOS of social media platforms govern the content-generative activities undertaken by social media users. They identify users who hold the copyrights to the content created, modified and disseminated on these platforms, as well as provide for the rights of users to use copyright-protected content generated by others on such platforms.

#### *1. Facebook*

Pursuant to the Facebook Statement, a user grants to Facebook, in respect of content 'covered by intellectual property rights', a '*non-exclusive, transferable, sub-licensable, royalty-free, worldwide* license' to *use* any content covered by intellectual property rights that he or she posts on the Facebook platform.7 This licence is effectively unencumbered (ie, unrestricted by copyright), although a user owns all the content that he or she posts.8 The licence ends when the user deletes the relevant content, or closes his or her account, *unless* such 'content has been shared with others, and they have not deleted it'.9 The Facebook Statement further clarifies that where a user publishes content and chooses the 'Public setting', the user is in effect allowing *everyone*, including non-Facebook users, 'to access and use that information'.10 At the same time the term 'use' is broadly defined and includes the acts of running, copying, public performance or display, distribution, modification, translation and the creation of derivative works.11

#### *2. Pinterest*

Under the Pinterest Terms, a user retains all rights in the content he or she has posted on the Pinterest platform.12 Further, each of Pinterest and *other users* acquire a 'non-exclusive, royalty-free, transferable, sublicensable, worldwide' licence to, among other things, use, display, reproduce, 're-pin', modify, create derivative works from, perform and distribute a user's content *solely* for 'the purposes of operating, developing, providing and using' the Pinterest products.13 This qualifier limits the scope of the licences granted – the broad range of acts is permissible only to the extent that these are carried out on the Pinterest platform and for the purposes of developing and using the services and products on Pinterest. After a user has deactivated his or her account, Pinterest and other users can continue, in relation to the user's content, to engage in acts consistent with the rights granted under the licence when the Pinterest account was active, if such content has already been stored or shared by other users.14

#### *3. YouTube*

The YouTube Terms provide that a user retains all ownership rights, although the user, through submitting his or her content to YouTube, grants to the latter a similarly unencumbered 'worldwide, non-exclusive, royalty-free, sub-licensable and transferable' licence to, inter alia, use, reproduce, distribute, *prepare derivative works of*, display, *adapt*, electronically transmit and perform his or her content15 in connection with the service, as well as YouTube's, and its successors' and affiliates' business.16 While content on the YouTube platform is 'owned by or licensed to YouTube', it is subject to 'copyright and other intellectual property rights under the law'.17 In relation to the sharing of content by a user, *other users* of YouTube are also expressly granted a licence with similar rights as can be exercised through the functionality of the YouTube service, except that the rights of adaptation, and to prepare derivative works, are specifically omitted.18 Further, notwithstanding the termination of licences granted to YouTube within a 'commercially reasonable time' after a user removes the relevant video clips from his or her YouTube account, YouTube may retain the deleted video clips that are not displayed.19 In addition, the licences in respect of comments a user submits (ie, to video clips shared on YouTube) are irrevocable and perpetual.20

#### *4. Twitter*

Under the Twitter Terms, while a user retains the rights to his or her content,21 a 'worldwide, non-exclusive, royalty-free license (with the right to sublicense)' is granted to Twitter to, inter alia, use, copy, reproduce, adapt, modify, publish, display and distribute such content in 'any and all media or distribution methods'.22 The provision further clarifies that the licence authorises Twitter to make a user's 'tweets' available to the public and to let *others* do the same.23

#### *5. Wikipedia*

The Wikipedia Terms are the TOS that apply to all of the collaborative projects started by the Wikimedia Foundation. Its summary states that while a user can share and re-use articles and other media on the Wikipedia platform under *free* and *open* licences, such users also license his or her individual contributions to Wikipedia under *free* and *open* licences, except where these contributions fall within the public domain.24 It is emphasised under the Wikipedia Terms that the Wikimedia Foundation merely *hosts* the content, which is created and managed by users.25 In general, *all* content submitted to Wikipedia has to be *licensed* so that it is freely re-usable by anyone who is interested in accessing it.26 In particular, users contributing content to Wikipedia are required to 'grant broad permissions to the general public to *re-distribute* and *re-use*' their content freely, so long as there is proper *attribution* of the use and the *same freedom to re-use and re-distribute* is granted to resulting *derivative works*. 27 The licensing requirements for text in respect of which a user holds the copyright are set out under the 'Creative Commons Attribution-Share Alike 3.0 Unported License'28 and the 'GNU Free Documentation License'.29 These licences allow for *commercial* uses of the content, so long as users are compliant with the licensing terms.30 Furthermore, under the Wikipedia Terms, the licences granted by a user in relation to his or her contributed content are irrevocable, even after a user terminates his or her use of the services.31 Overall, the clauses relating to the ownership and licensing of the content are presented differently from the equivalent clauses under the TOS of the other four social media platforms. For instance, the Wikipedia Terms make a point of specifying that the re-use of content on the Wikipedia platform is acceptable.32

#### *6. Observations*

Under the TOS surveyed, a user not only grants the relevant social media platform an unencumbered licence to use his or her content under the respective TOS; he or she also grants other users the licence to use his or her content. The rights of other users in relation to a user's content are more equivocal and vague under the Facebook Statement and the Twitter Terms as compared to the Pinterest Terms, the YouTube Terms and the Wikipedia Terms.

In respect of the Pinterest platform, the scope of the licence granted by a user to other users is fairly limited – such licence covers mainly the activities occurring on the Pinterest platform. With regard to the Wikipedia platform, on the other hand, the expansive grant of rights from a user to other users, in relation to his or her content, could be explained by the purpose of a collaborative project such as Wikipedia. Its main purpose is to expand the commons of free culture and knowledge,33 so hosting freely accessible and re-usable content is consistent with the project's overall ethos. Finally, it is noted that YouTube users are granted limited rights (in comparison to those granted to YouTube) to re-use a user's content, which do not include the rights of adaptation and to prepare derivative works.34

#### B. Copyright policy

Under the *DMCA*, 35 there is a safe harbour provision that can, subject to the meeting of other conditions,36 exempt social media platforms (being service providers)37 from liability for monetary relief, in relation to secondary liability for copyright infringement38 by their users. The conditions that have to be met by a social media platform are as follows:

(i) the platform does not have either actual or constructive knowledge of the infringing activity;39


Another condition to be met is that the relevant social media platform has a termination policy in respect of the accounts of users who are repeat copyright infringers.42 Moreover, the platform is also protected from liability to users if the removals of content were done in good faith, even if the content is later found to be non-copyright infringing and erroneously removed.43

At the same time there are safeguards built into the *DMCA* to prevent abuse by copyright holders of the notice and takedown process available to them. These include the user's option to issue a counternotice where his or her content has been erroneously removed44 and the award of damages where a copyright holder knowingly and materially misrepresents that content is infringing.45 Separately, the *DMCA* also lists the requisite elements for a notice alleging copyright infringement46 and a counter-notice disputing the same.47

In this sub-section, the copyright policies of the social media platforms are examined. These policies set out the recourses (legal or otherwise) available to copyright holders, in relation to the infringing content and the relevant users, as well as the positions taken by such platforms against users who repeatedly infringe the copyrights of others. In either respect, it is noted that the *DMCA* mechanism is incorporated into the TOS of the five platforms.

#### *1. Facebook*

The Facebook Statement prohibits a user from sharing content that infringes another user's rights.48 Facebook can remove content that violates the rights of a copyright holder, and also disable a user's account for repeated infringements.49 In this respect Facebook has created a page, accessible via a link,50 which specifically advises users on copyright and trademark infringements. A user is warned against misrepresenting that an activity is infringing,51 as he or she may be liable for damages under the *DMCA*, 52 including costs and fees incurred by Facebook or other users. Other alternatives are proposed to a copyright holder (often also a user) – namely, resolving the issue directly with another user whom he or she believes is infringing his or her copyright or seeking legal advice before reporting the infringement under the *DMCA*. 53 A copyright holder who nonetheless wishes to notify Facebook of copyright infringement has to fill in a *DMCA* compliant form made available online.54 He or she can alternatively submit a report to Facebook's designated agent, which includes all elements of a copyright notice under the *DMCA*. 55 If there is a wrongful removal of content by Facebook, a user can appeal against such removal.56

#### *2. Pinterest*

Under Pinterest's acceptable use policy, a user agrees that he or she will not post content that is infringing of, among other things, another user's intellectual property rights.57 On the other hand, pursuant to its copyright policy, Pinterest has the discretion to terminate the account of a user who repeatedly infringes, or is repeatedly charged, with infringing the intellectual property rights, including copyrights, of others.58 A copyright holder, or a person acting on his or her behalf, is asked to report copyright infringements, *either* by completing a *DMCA* compliant form of notice and delivering it to Pinterest's designated agent *or* by taking the more convenient option and submitting a *DMCA* compliant form made available online.59 A user who believes that his or her content was mistakenly removed is entitled to file a counternotice by sending an email to Pinterest, in the format suggested under Pinterest's copyright policy.60

#### *3. YouTube*

Under the YouTube Terms, YouTube can terminate the account of a repeat infringer who has been notified of infringing activity for the third time.61 In addition, under its community guidelines, YouTube users are reminded not to upload video clips they did not make, or to use content within their video clips that someone else owns the copyright to.62 The mechanism under the *DMCA* is similarly available to a copyright holder – the copyright holder can notify YouTube of copyright infringement using a *DMCA* compliant online form,63 while a counter-notice using another online form can be submitted to YouTube if the latter has removed content erroneously.64

#### *4. Twitter*

The Twitter Terms provide that Twitter respects the intellectual property rights of others and expects its users to do the same.65 As with the other social media platforms discussed, Twitter can terminate the account of a repeat infringer.66 A copyright holder can avail him- or herself of the *DMCA* notice and takedown procedure and submit an online form for this purpose;67 a user can submit a counter-notice to Twitter, in response to a wrongful removal of content.68

### *5. Wikipedia*

Users are prohibited under the Wikipedia Terms from infringing intellectual property rights;69 further, the Wikimedia Foundation can terminate the account of a repeat infringer.70 In addition to the notice and takedown mechanism under the *DMCA*, 71 the Wikimedia Foundation offers two alternative mechanisms to a copyright holder.72 The first alternative is to submit a request to the Wikimedia community, which, in the Wikimedia Foundation's own words, 'handles copyright issues faster and more effectively than prescribed under the *DMCA*'.73 The copyright holder can post a notice stating his or her copyright concerns on a relevant page created for this purpose.74 The second alternative is for the copyright holder to send an email to the community, at the email address provided.75

### *6. Observations*

The *DMCA* mechanism is available to copyright holders (often also users) under all of the TOS examined. Beyond the *DMCA*, Facebook, YouTube and the Wikimedia Foundation have flagged out other selfhelp alternatives to copyright holders. Indeed, Facebook appears to encourage copyright holders to seek self-help firsthand when they have copyright concerns. YouTube offers, under its 'Copyright Center', a vast source of self-help options76 for copyright holders of content, as well as users.77 Finally, the Wikimedia Foundation, in respect of its projects including Wikipedia, also directs copyright holders to take up community self-help options, instead of the legal route under the *DMCA.*

### C. Indemnification and limitation of liability

The indemnification and limitation of liability clauses under the TOS of social media platforms provide for the position taken by these platforms if the content-generative activities undertaken by social media users are found to be copyright infringing, as well as such platforms' right to indemnity in these circumstances. The clauses further limit the liability of the platforms.

### *1. Facebook*

Facebook disclaims all responsibility for the acts of a user on Facebook, including his or her sharing of content.78 If there is any claim brought against Facebook in relation to a user's actions or content, such user is required to indemnify Facebook against all damages, losses and expenses related to the claim.79 Facebook further excludes or limits, to the fullest extent permissible under applicable law, its liability to a user.80

#### *2. Pinterest*

Pinterest similarly disclaims any responsibility for content shared on the Pinterest platform.81 The Pinterest Terms contain an indemnity clause, albeit a narrower one, since it applies only if there are damages, losses, expenses, and so on, arising from a use of Pinterest for *commercial* purposes.82 Pinterest also excludes or limits – to the maximum extent permitted by law – its liability to a user for, among other things, damages or losses arising from his or her use of the Pinterest platform or the content shared on Pinterest.83

### *3. YouTube*

YouTube too disclaims all responsibility relating to content shared on its platform.84 The YouTube Terms further provide that a user agrees to indemnify YouTube and its affiliates, and so on, to the fullest extent permitted by law, for matters relating to his or her use of YouTube,85 including a violation of the copyright of a third party86 (often also a user). Additionally, YouTube's liability to a user for, among other things, losses, expenses or damages resulting from his or her use of its service or the content on the YouTube platform is excluded or limited, to the fullest extent permitted by law. 87

#### *4. Twitter*

Twitter also disclaims responsibility for any content posted on Twitter.88 Furthermore, pursuant to the Twitter Terms, Twitter's liability to a user is excluded or limited – to the maximum extent permissible under applicable law – for matters resulting from the use of Twitter or the content on Twitter.89

#### *5. Wikipedia*

Under the Wikipedia Terms, the Wikimedia Foundation disclaims, among other things, responsibility for the content or acts of third parties.90 The Wikipedia Foundation also limits or excludes its liability to a user, to the fullest extent permitted by law.91

### *6. Observations*

As can be seen, all the social media platforms examined disclaim liability for the content available and for the use of such content. In any case, if these platforms are found liable and the disclaimers are ineffective, the liability clauses under the TOS will apply, to the maximum extent legally permissible, to limit or exclude their liabilities. In addition, a user has the contractual obligation to indemnify Facebook, Pinterest and YouTube under their respective TOS, if the platforms incur losses as a result of his or her use. Notably, the indemnity and liability clauses have been drafted to be inclusive – in respect of the scope of circumstances they can apply to as well as the parties involved (ie, users of such platforms or other third parties).

### D. Governing law and jurisdiction

When there is a copyright-related dispute relating to content, the governing law and jurisdiction clauses under the TOS of social media platforms will naturally be the first point of reference as to the law that governs such dispute, and the jurisdiction in which a court can adjudicate the dispute.

### *1. Facebook*

The laws of the state of California govern the Facebook Statement and any dispute arising between Facebook and a user, 'without regard to conflict of law provisions'.92 The user further agrees to have any dispute resolved exclusively in the US District Court for the Northern District of California or a state court located in San Mateo County, and to submit to the personal jurisdiction of these courts for the purpose of all litigation claims.93

### *2. Pinterest*

Under the Pinterest Terms a user agrees to contact Pinterest first to resolve a dispute informally. If the dispute remains unresolved, it will be subject to binding arbitration by the American Arbitration Association, with reference to the applicable arbitration rules.94

The laws of the state of California similarly govern the Pinterest Terms, 'without respect to its conflict of laws principles'.95 The user also consents to submit to the personal jurisdiction of a state court located in San Francisco County, California, or the US District Court for the Northern District of California, for actions not subject to arbitration.96

### *3. YouTube*

The YouTube Terms are governed by the laws of California, 'excluding California's choice of law rules', and a user consents to submit to the personal jurisdiction of the courts in Santa Clara County, California.97 The user further agrees that the YouTube service is deemed 'solely based in California' and that YouTube is 'a passive website that does not give rise to personal jurisdiction over YouTube', in jurisdictions other than California.98

### *4. Twitter*

Under the Twitter Terms, the governing law is that of the state of California, 'excluding its choice of law provisions'.99 Further, the user agrees that the federal or state courts located in San Francisco County, California will have jurisdiction over the litigation claims arising from his or her use of the Twitter service.100

#### *5. Wikipedia*

Where there is a dispute, a user is encouraged to seek resolution through the alternative dispute resolution mechanisms provided by the project.101 Similar to the Pinterest Terms and the Twitter Terms, the Wikipedia Terms provide that the laws of the state of California, without reference to conflict of laws principles, constitute the governing law. The user also submits to the personal jurisdiction of the federal or state courts in San Francisco County, California.102

#### *6. Observations*

The social media platforms studied have chosen as the governing law of their TOS the laws of the state in which their headquarters are based.103 A user also agrees to submit to the jurisdiction of various federal, state or district courts in the US, as the case may be, in the event of a dispute.

### E. Summary

Table 3.1 below serves as a summary of the above discussion on the key terms that govern or have implications on the content-generative activities of users on Facebook, Pinterest, YouTube, Twitter and Wikipedia.


**Table 3.1 Summary of the key terms applicable to the content-generative activities of users across the five selected social media platforms**

*(continued)*

**Table 3.1** *(Cont.)*



**Copyright policy**

**Indemnification and** 

**Governing law and** 

newgenrtpdf

**jurisdiction**

**limitation of liability**

**Social media platform &** 

**Ownership and licensing**

**terms of service**

### II. Scenario two: the application of the terms of service

The case study on Jane in Chapter One serves as the basis on which the TOS discussed in this chapter can be applied to the content-generative activities undertaken by Jane and other users. I consider these activities in the same order as in Chapter Two, where the copyright laws discussed were applied to such activities.

A. Jane's use of the music video clip on YouTube as her morning alarm

As the singer's managers have uploaded the video clip to YouTube they are bound by the YouTube Terms, which provides that they grant a licence to other users, including Jane, to use the video clip in the way Jane has. In this instance, Jane is acting within the scope of the limited licence granted from one YouTube user to another, as there is no preparation of derivative works from, or adaptation of, the said video clip.104

This suggests that Jane has not acted in breach of the YouTube Terms.

B. Jane's 'pinning' of the YouTube music video clip on her pinboard titled 'My Favourite Things' on Pinterest

Jane can directly 'pin' the video clip on her Pinterest pin-board by utilising the 'share' function available on the YouTube platform. Through its provision of the social plug-in105 for Pinterest, among other social media platforms, YouTube arguably anticipates and permits106 this use (ie, the sharing of a video clip on YouTube with users of such other platforms).

This indicates that Jane has not acted in breach of the YouTube Terms.

C. Jane's use of Evangeline's earlier commentary on Facebook to create her own commentary

Whether Jane's use complies with the Facebook Statement is less straightforward to evaluate than in the earlier two instances. Pursuant to the Facebook Statement, while an unencumbered licence is expressly granted to Facebook by a user in respect of his or her content, it is less clear what other users are permitted to do in relation to such user's content.107 Notwithstanding this lack of clarity, Jane's use is arguably permitted under the Facebook Statement. An example is made, under the Facebook Statement, of a user who publishes content using the 'Public' setting – this user is said to have allowed everyone, including others not on Facebook, to use the information shared.108 I argue that Jane's use falls within the wide definition of 'use' which includes the modification and translation of, as well as the creation of derivative works from, original content.109 The Facebook Statement further emphasises that a user controls how content is shared with his or her privacy settings.110 In this instance, Evangeline's Facebook settings are permissive enough to enable Jane to view and receive notifications of Evangeline's posts on Facebook. Thus, in consideration of the Facebook Statement in its entirety, Jane's use is likely to be licensed.

Based on the above, Jane has not acted in breach of the Facebook Statement.

D. Jane's use of multiple photographs of newborn babies available on the pin-boards of other Pinterest users to create a collage to share on Pinterest

Jane has modified the images of other Pinterest users to create the collage, a derivative work. Her use is permitted under the licences granted by these users to Jane.111 Further, since the collage is shared on Pinterest, the condition that certain acts are permitted so long as they are carried out for the purpose of using the Pinterest service is satisfied.112

This suggests that Jane has not acted in breach of the Pinterest Terms.

### E. Jane's simultaneous sharing of the collage on Facebook and Twitter

The licences granted by the other Pinterest users to Jane, in respect of their images, permit acts for the limited purposes of developing or using Pinterest.113 At first glance, Jane's sharing of the collage off the Pinterest platform does not fall within the scope of the licences granted. However, it is noted that users who access the 'pin' on Facebook are linked back to the Pinterest platform. This is the same for users who access the 'tweet' incorporating the link on Twitter.

Based on the above, Jane has not acted in breach of the Pinterest Terms. Also, as her use is licensed, she has not breached the Facebook Statement114 and the Twitter Terms115 (ie, for infringing the rights of others in general) when she shares the collage hosted on Pinterest on these two platforms.

### F. Jane's use of the same collage in her blog post on WordPress

To ascertain if Jane is in breach of WordPress's TOS, its terms will have to be examined separately. While WordPress is not one of five social media platforms selected for the purpose of this book, its mention in the case study serves to depict the common situation where content derived from one social media platform (ie, Pinterest) is reproduced on another platform. In such an instance, the terms of the latter platform (ie, WordPress) will be relevant for consideration.

For the purpose of conducting a discussion distinct from that under sub-section (E), assuming that Jane directly attaches the collage to her blog post on WordPress – instead of sharing the link to the collage on Pinterest – her use is not licensed under the Pinterest Terms.116 Because Jane, as a user of WordPress, represents and warrants under its TOS that she does not infringe the intellectual property rights of any third party through her use,117 she is at first appearance in breach of WordPress's TOS.

The above indicates that Jane has breached both the Pinterest Terms and WordPress's TOS.

### G. Zee's contribution to Wikipedia on 'income inequality' using what Jane has written

Zee's use is arguably permitted under the Facebook Statement, in view of its reference to a user who publishes content under the 'Public' setting – such user is said to allow everyone, including non-Facebook users, to access and use the information.118 Zee's use also falls within the broad definition of 'use' given under the Facebook Statement.119 In this instance, Jane's Facebook settings are permissive enough to enable her colleagues, including Zee, to access her posts.

As is the case under sub-section (C), the above suggests that Zee has not acted in breach of the Facebook Statement considered in its entirety. On this basis Zee has also not breached the Wikipedia Terms.120

H. Jane's creation and sharing of a new video clip by way of 'vidding' on YouTube and subsequently on Facebook

Jane's 'vidding' to create a new video clip (being a derivative work) is not a permitted use under the limited licence granted by the relevant YouTube users to Jane, pursuant to the YouTube Terms.121 Moreover, Jane has not sought the consent of the copyright holder (ie, the producer of the television series), although she is seen to have represented that the new video clip she shares on the YouTube platform does not contain the copyright-protected material of third parties.122 At the same time Jane is prohibited from posting content that infringes another person's rights on Facebook.123

The above indicates that Jane has breached both the YouTube Terms and the Facebook Statement by her sharing of the new video clip on YouTube and Facebook.

I. Cheryl's use of 'stills' from Jane's video clip as thumbnail images on her website

Similar to Jane's 'vidding' discussed under sub-section (H), Cheryl's use (being an adaptation) is not a permitted use under the limited licence granted by Jane to other users on YouTube, pursuant to the YouTube Terms.124 In this instance, the content is shared on another website. With reference to the discussion under sub-section (F), if this website happens to be a standard one hosting a blog such as WordPress, Cheryl is taken to represent and warrant – through her use – that she does not infringe the intellectual property rights of any third party.125

Regardless of which website Cheryl is displaying the images on, the above suggests that she has breached at least one set of TOS (ie, the YouTube Terms).

J. Other users' partial use of Jane's collage to create their own, and sharing the same on Pinterest, Facebook and Twitter

The discussion under sub-section (D) can be referred to. In this instance, other users instead of Jane are creating the collages for sharing across the three social media platforms. Although multiple scenarios, dependent on the social media platform on which the collage is first accessed, present themselves for consideration here, it is assumed – for the purpose of discussion in this sub-section – that the collage is first accessed on the Pinterest platform and thereafter edited for sharing on Pinterest, Facebook and Twitter by these users. Unlike the case under sub-section (E), the users are sharing their collages by uploading them directly on the Pinterest, Facebook and Twitter platforms. Facebook and Twitter users accessing these collages are not linked back to the Pinterest platform.

Each user's modification of Jane's collage and other users' images to create his or her own collage, a derivative work, for sharing on Pinterest is a permitted use under the licences granted to him or her (ie, by Jane and such other users) under the Pinterest Terms.126 Therefore the creation of a new collage for sharing on the Pinterest platform by such users does not (per se) breach the Pinterest Terms.

On the other hand, if the user accesses Jane's collage on the Pinterest platform and creates a new collage to share on Facebook and Twitter, the licences granted to him or her will not extend to cover this sharing off the Pinterest platform.127 Under the Facebook Statement, a user is prohibited from posting content that infringes another user's rights.128 The Twitter Terms also contain a similar obligation to respect the intellectual property rights of others.129 In this respect the above indicates that the user has breached not only the Pinterest Terms, but also the Facebook Statement and the Twitter Terms.

### K. Editor Jasper's use of Jane's collage on the cover page of his magazine

It is not clear from which social media platform (ie, Pinterest, Facebook or Twitter) Jasper extracted Jane's collage. Therefore the possibility of each platform being the platform on which Jasper accessed the collage will be considered in turn. Consistent with the earlier discussion, any use that is not carried out for the purpose of developing or using the Pinterest service is unlicensed under the Pinterest Terms.130 The Facebook Statement, on the other hand, is equivocal as to the rights of other users to a user's content:131 Jasper's specific use of the collage for his magazine cover arguably falls outside the scope of the licence granted by Jane. Finally, the Twitter Terms are also fairly equivocal in this respect. Any use by a third party user of a user's content, other than for the purpose of 're-tweeting', is likely to be unlicensed.132

Based on the above, Jasper has breached each of the Pinterest Terms, the Facebook Statement and the Twitter Terms by extracting the collage for commercial use.

### III. Relationship with the copyright regimes

In this section, I will analyse the relationship that the TOS have with the copyright regimes, with reference to the discussions in this chapter and in Chapter Two. I argue that while the TOS are aligned with the copyright regimes to some extent, there are potential incompatibilities between the regimes in three areas. I have elaborated on the alignment and incompatibilities in the following sub-sections.

#### A. Alignment with the copyright regimes

As evidenced by the discussion in Part I, a copyright holder who observes infringing use of his or her content on any of the five social media platforms surveyed can initiate the notice and takedown process under the *DMCA* integrated into the copyright policy of each platform.133 The requisite conditions for service providers, such as social media platforms hosting content online to qualify for protection under the safe harbour provision,134 give these platforms great incentive to incorporate the *DMCA* mechanism135 into their copyright policies – in order to be free from liability for monetary relief, in relation to any secondary liability for copyright infringement.136

One way to assess the effectiveness of the contractual regime in deterring users against undertaking potentially copyright infringing activities when these users generate content is to look at the frequency of use of the *DMCA* mechanism on the social media platforms examined. In this respect, there is some information made available by these platforms.

In a transparency report published online by Twitter detailing information including, among other things, the number of notices issued under the *DMCA*, it is recorded that between 1 July 2015 and 31 December 2015 there were a total of 19,039 takedown notices received by Twitter – 71 per cent of these notices resulted in the removal of content.137 That is more than a twofold increase in the number of takedown notices received compared to two years earlier.138 In contrast, with reference to a similar report published by the Wikimedia Foundation for the same period, 20 notices were received by the Wikimedia Foundation for its various projects, including Wikipedia. Only 45 per cent of these notices (ie, less than one in two) resulted in the removal of content.139

On a related note, Facebook also has a transparency report – albeit a less useful one for the purpose of this book, since it records only the number of government requests,140 rather than the number of takedown notices under the *DMCA* issued by copyright holders. Pinterest's report has similar limitations.141 Although Google's transparency report details information including, among other things, the requests to remove uniform resource locators (URLs) from various governments and copyright holders, the records furnished in the report exclude requests sent to Google's search engine directed to other Google products, such as YouTube.142 The report also excludes requests relating to content appearing on other Google products, such as content accessible through YouTube URLs,143 and is therefore of little relevance to this book.

Overall, social media platforms are solicitous about being perceived to caution users, through their reminders, from undertaking content-generative activities that do not respect the copyrights held by copyright holders. In addition to the removal of content under the *DMCA*, these platforms are entitled to disable the accounts of users for repeated infringements. This right is usually exercised when more than one *DMCA* takedown notice has been received in relation to content from the same user.144 The possibility of expulsion from a social media platform for repeated infringements – noted to be a condition for the platform to be eligible for the safe harbour provision145 – could have an additional deterrent effect on users, in respect of their engaging in potentially copyrightinfringing activities. I argue that, where the TOS are aligned with the relevant copyright regime,146 the two regimes reinforce one another.

Where the regimes are not aligned, I argue that the effectiveness of copyright laws in securing compliance from social media users when they generate content is compromised. This non-alignment is represented by the inconsistencies between the two regimes, which will be outlined in the following sub-section.

#### B. Potential incompatibilities with the copyright regimes

There are three main areas of potential incompatibilities to be considered here.

#### *1. Vesting of 'ownership' under the terms of service*

The vesting of 'ownership' on a user of a post on Facebook, a 'pin' on Pinterest, a video clip on YouTube, a 'tweet' on Twitter and a contribution on the Wikipedia platform under the TOS does not per se entitle him or her to copyright protection of his or her content. A foreseeable barrier to the grant of copyright protection to content on social media is where it comprises banal words, phrases and language of widespread usage.147 As such, not all content on social media will qualify as independent works containing the requisite modicums of creativity entitling such content to copyright protection.

As mentioned earlier, the minimal originality threshold to be met for copyright protection in the US, the UK and Australia is not high.148 While there can be no generalisations – all other things being equal – *if* the relevant content originates directly from the user, each of a post on Facebook, a 'pin' on Pinterest, a video clip on YouTube and a contribution on Wikipedia is more likely to meet the originality requirement than a 'tweet' on Twitter, given the latter platform's imposition on its users of a limit of 140 characters or less, per 'tweet'.149 Because there is a need for a higher level of creativity to qualify a short textual work for copyright protection, a brief work such as a 'tweet' is less likely to be copyrightable as it affords fewer opportunities for originality.150 It is nonetheless possible for some 'tweets' to cross the originality threshold and hence to be copyright protected.151

In addition, works such as status updates on Facebook, comments to 'pins' on Pinterest and to video clips on YouTube, as well as 'tweets' on Twitter, are less likely to be copyrightable for another reason – that of not meeting the fixation requirement or its equivalent.152 Unlike photographs and video clips on Facebook, such updates, comments and 'tweets' do not concurrently exist as stored formats in separate media. Indeed, it has been suggested that the Facebook Statement recognises the distinction between a) photographs and video clips and b) status updates, when it expressly states that photographs and video clips are content covered by intellectual property rights, but silently leaves open to debate the same question in respect of status updates.153 Status updates on Facebook and 'tweets' on Twitter will arguably meet the general fixation requirement in the US154 or the equivalent requirements in the UK155 and in Australia,156 particularly if they can still be found. For example, subject to a Facebook user's privacy settings, status updates from years back may remain accessible on the Facebook platform. At the same time, although recent 'tweets' by a Twitter user who 'tweets' frequently may be inaccessible for the reason that Twitter only allows retrieval of up to 3,200 'tweets',157 such 'tweets' can still be located through taking specific steps. In the case of transient (or inaccessible) content, the evidentiary purpose of fixation is argued to be defeated, as the author's contribution to public discourse cannot be preserved nor can reliable proof of the bounds of his or her copyright-protected expression be provided.158

On the other hand, this non-fulfilment of the evidentiary purpose of fixation conceivably applies to the comments made to 'pins' on Pinterest and to video clips on YouTube. In the case of the Wikipedia platform, the fixation requirement, or its equivalent, will likely pose less of a challenge to the copyright-ability of content shared on Wikipedia. This is because of its purpose as a platform. Wikipedia serves as a repository of the cumulative knowledge upon which its users build and consult for a longer period of time than the other social media platforms.

That a substantial volume of the content 'owned' is not copyright protectable in the first place leads to the inference that social media platforms are employing precautionary measures in their acquisitions of licences from their users.159 Furthermore, even if the relevant content is copyright protected, the grant of an unencumbered licence to the social media platform means that the copyright holder (also a user of the platform) has limited rights to his or her content.160 On this basis, I argue that the 'ownership' conferred on a user over his or her content under the TOS is not meaningful, as it does not mirror the exclusive rights to which a copyright holder is ordinarily entitled.

#### *2. Imposition of the terms of service on third parties*

Generally the doctrine of privity provides that contracts, such as the TOS entered into by social media users, cannot confer rights or impose obligations on any third party, other than the direct parties to such contracts. To varying degrees, the TOS of the respective social media platforms make reference to the rights of others161 to use the content made available by a user on the relevant platform. Accordingly, a strict application of the doctrine of privity means that third party users may not be able to invoke these provisions under the TOS to justify their uses of content.

There are exceptions to the doctrine of privity. This doctrine is relaxed, for example, by way of development of the common law in the US162 and the introduction of the *Contracts (Rights of Third Parties) Act 1999* in the UK.163 Therefore, in either of these two jurisdictions, a third party to a contract can enforce a contractual term if it is clearly intended to benefit him or her. With reference to the TOS examined, it can be argued that this intention to benefit third party users (ie, to confer licences on third party users which permit uses of a user's content) is less clearly expressed under the Facebook Statement and the Twitter Terms than under the Pinterest Terms, the YouTube Terms and the Wikipedia Terms – the latter platforms are more unequivocal in this respect.164 On the other hand, in Australia, the exception to the doctrine of privity applies narrowly to insurance contracts.165

In this respect the *Morel* case166 lends support to the argument that the intention to benefit third parties is unclear under the Twitter Terms. It also confirms the copyright-ability of Twitter-related content (ie, a photograph).167 In *Morel* the trial court rejected Agence France Presse's (AFP) argument that there was an implied licence for AFP to use Morel's works under the Twitter Terms, finding instead that the unencumbered copyright licence granted to Twitter under the Twitter Terms did not extend to benefit third parties.168 As such, AFP, which has its own user account on Twitter,169 was held liable for copyright infringement when – together with its distribution partner Getty Images in the US – it distributed and licensed the photographs shared on Morel's Twitter page, without his permission, for commercial use by other third party news agencies.

Although the licence granted by a user to Twitter under the Twitter Terms allows Twitter to make a user's 'tweets' available to the public and to let others do the same,170 the licence did not extend to include AFP's use in this instance. Moreover, Twitter has issued guidelines for the use of content shared by its users on Twitter – these guidelines remind other users, in disseminating images found on Twitter, to display the full text of 'tweets' with their accompanying images and to include the respective names of the user accounts.171 Through suggesting that content such as images should not be disassociated from the 'tweets' with which they are shared, the guidelines are found to support the interpretation that the Twitter Terms do not manifest the intention of a user to confer a benefit on the world at large commercially to use his or her content,172 other than for the limited purpose of 're-tweeting'.

Therefore, while US courts appear prepared to recognise a user's rights to his or her copyrightable content on social media, they are inclined to interpret narrowly any incursions on a user's rights. This will include the scope of licence to a user's content granted under the TOS he or she accepts, particularly if the TOS are not adequately clear in this respect. The position is likely to be similar in the UK.173 On this note, Australian courts will be *more* likely than in the US or the UK to hold that a third party user of content on social media is not licensed to do so under the TOS, given that there is no general exception to the doctrine of privity.174

The provision for voluntary licensing by users under the TOS of social media platforms – to obviate the risk of copyright infringement for other users who undertake content-generative activities in relation to the content shared – is premised on the assumption that such content is copyright protectable. As seen earlier, this is not always the case. Even if the content is copyright protected, the licensing terms under the TOS have to be clear enough for the use of (one user's) content by third party users to be permitted. In this sense, the principles relating to contractual interpretation may render ineffective the attempt made by social media platforms to make legitimate their users' interactions with copyrightprotected content.

#### *3. Choice of governing law and jurisdiction*

The choice of governing law and jurisdiction clauses under the TOS may be unenforceable, as against a user resident in a state outside California or in another country. In sub-sections (a) and (b) below, I will consider the application of conventions, treaties and mandatory domestic laws to which a user resident in a jurisdiction outside California is subject. Through this discussion, the contradictions between the TOS and other laws are highlighted.

I will also consider, in sub-section (c) below, the governing law for copyright-related disputes arising from content-generative activities on social media. The discussion will underscore the inconsistencies between the TOS and the copyright regimes. It is convenient to conduct the analyses in these sub-sections together, although subsections (a) and (b) do not point to an inconsistency between the TOS and the copyright regimes, unlike sub-section (c). These analyses are relevant to ascertaining the governing law that will apply to a copyright-related dispute, and the jurisdiction in which a court can adjudicate the dispute.

In these respects, I confine my discussion to what is necessary to illustrate that the enforceability of the choice of governing law and jurisdiction provisions under the TOS is limited. The logical corollary of the non-enforceability of the choice of governing law and jurisdictions clauses is that the legal positions in other jurisdictions beyond that specified under the TOS – whether in the US (and outside of California), the UK, Australia or otherwise – and further, in relation to contract, copyright or other laws, are relevant to users of social media platforms. This supports this book's approach of considering the copyright laws in jurisdictions such as the UK and Australia, in addition to those of the US. There is no intention for the discussion below to accommodate the intricate details of broader conflict of laws issues, beyond what is needed for the narrower purpose of the book.

#### *(a) Choice of law*

Although the Restatement (Second) of Conflict of Laws in the US (*Second Restatement*) supports the application of the contractual choice of governing law under the TOS,175 an alternative governing law can apply, particularly where the contractually chosen governing law would be contrary to a fundamental policy of another state that has a materially greater interest.176 Therefore, if a user is resident in another state other than California in the US, the content of such state's laws will be relevant to an inquiry made on the applicable governing law. The *Second Restatement* further provides that a fundamental policy is a substantial one, which may be embodied in laws that make one or more kinds of contracts illegal or which protect a person against the oppressive use of superior bargaining power.177 An example of such a law is one that involves the rights of an insured individual against an insurance company.178

On the other hand, with respect to a user in the UK, *Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations* (*Rome I Regulation*)179 applicable to member states of the European Union (EU) has to be taken into account. While the freedom of the parties to choose a governing law for the contract entered into is to some extent respected, the rules under the *Rome I Regulation* recognise that the contractual choice of law clause will not override provisions that cannot be derogated from by way of private agreement.180 These provisions are overriding mandatory provisions regarded as crucial by a country for safeguarding its public interests and (similar to the position in the US) include the provisions which, on application, can render the performance of some contracts unlawful.181 Furthermore, the US-registered entities operating the relevant social media platforms are taken to direct their activities to users in Europe.182 Because there are mandatory provisions under the law of the country where the consumer has his or her habitual residence that cannot be derogated from,183 this means that the relevant court adjudicating the dispute – in assessing the validity of the governing law contractually chosen – has to take into account the fact that there may be no similar protection of the British user under the mandatory laws of the UK.184

There is no equivalent regime applicable to a user in Australia. However, since English and Australian choice of law rules are nonmandatory and there is no obligation on the part of plaintiffs in these two jurisdictions to plead foreign law, the *implied* permissible choice of governing law is effectively that of the forum or jurisdiction where the dispute is heard.185 As a result of the closely connected relationship between the test for *forum non conveniens* and the pleading of foreign law, when the adjudicating court is an English or Australian court and there is a failure to plead foreign law effects, the governing law will likely be that of the UK or Australia, as the case may be.

Thus an alternative law may govern a dispute between a user resident in a state outside California, *or* in a country such as the UK and Australia, and the respective US-registered entity operating the social media platform, despite the express election of a governing law under the TOS.

#### *(b) Choice of jurisdiction*

Notwithstanding that the governing law chosen under the TOS will likely be honoured, in relation to a dispute between a user in the US and the US-registered entity operating the relevant social media platform, state laws may limit the enforceability of a choice of jurisdiction clause with respect to users who are not resident in California.186

With respect to a user in the UK, *Regulation (EU) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters* (*Brussels I Regulation*)187 applicable to member states of the EU has to be considered. While the autonomy of parties to determine the court having jurisdiction over their dispute is respected – albeit within some limits – there are specific rules under the *Brussels I Regulation*188 which will apply to the TOS, in view that these TOS are consumer contracts and that the US-registered entities running the social media platforms have directed their activities to the UK where the user resides.189 For example, under the home court rule, proceedings against the user can only be brought in a court of the UK, although the user has the option of bringing proceedings either in the US or the UK.190 Even where the user does not exercise his or her right to sue the US-registered entity in an English court, it has been suggested that such a court will likely refuse to enforce a judgement if the user was summoned to a court in a distant forum such as the US for litigation.191

On a related note, an English court adopts the doctrine of *forum non conveniens*, or the *Spiliada Maritime Corporation v Consulex Ltd* (*Spiliada*)192 test, and will *only* stay proceedings if there is *clearly* a *more appropriate* court for trial. Therefore a user resident in the UK is unlikely to be turned away by an English court at which he or she decides to commence proceedings, in spite of the chosen jurisdiction under the TOS. The effect of this doctrine is consistent with the home court rule.

There is no equivalent regime applicable to a user in Australia.193 In general the jurisdiction agreement incorporated under the TOS will likely be respected by an Australian court,194 although such a court may refuse to enforce a choice of jurisdiction clause where doing so would be tantamount to allowing the parties to contract out of applicable legislation.195 Nonetheless, in light of *Voth v Manildra Flour Mills Pty Ltd*, 196 an Australian court is unlikely to order a stay of its proceedings against an Australian user who commences litigation proceedings in a court of Australia unless it considers itself a *clearly inappropriate* forum. As such, it appears to be rarer for an Australian plaintiff to be turned away by an Australian court on grounds of jurisdiction,197 in comparison to a British plaintiff who brings proceedings in an English court under the *Spiliada* test.198

Thus, particularly in respect of a dispute concerning a user resident in a country such as the UK and Australia, the applicability of the choice of jurisdiction clause under the TOS is limited.

#### *(c) Applicable copyright legislation*

Outside the contractual elements of the TOS, conflict of laws issues in respect of the non-contractual elements, such as those relating to copyright, will be considered further. If the governing law is still determined to be the law of the state of California as contractually provided under the TOS, after taking into account the other factors above, the principle of presumption against extraterritoriality developed under US case law199 generally applies to limit the application of US copyright legislation to content-generative activities occurring within the territorial limits of the US.200 This defeats the attempt made by social media platforms under their TOS to include such activities occurring outside of the US201 under the purview of US copyright legislation.

There is a dearth of detailed guidance on this issue in the UK and in Australia.202 The *Berne Convention*, to which the US, the UK and Australia are contracting parties, may shed some light on this. Although article 5(1) of the *Berne Convention* is not a conflicts rule, the principle of national treatment in the article requires a member state to treat foreign and domestic copyright holders alike.203 This means that, independent of the existence of protection in the country of origin of a copyright work,204 protection is conferred on the work by the law of the country for which protection is sought (or *lex loci protectionis*).205 Such law will apply to issues pertaining to the extent of protection and redress available to the copyright holder, and could be different from the law governing the rights and obligations of the parties under the TOS.

At the same time, the difficulty of characterising issues arising under and relating to the TOS into contractual and non-contractual issues further complicates the determination of the governing law that applies to a copyright-related dispute, and the jurisdiction in which a court can adjudicate such dispute. For instance, the choice of governing law and jurisdiction clauses may be valid in relation to the grant of nonexclusive licences under the TOS.206 These licences are not seen to affect the proprietary rights of copyright holders – as such, the conventional choice of law principles continues to apply in this respect.207

#### *(d) Implications*

In line with this book's approach, I consider the implications of the earlier discussion on a user resident in the UK or in Australia. Notwithstanding the expected enforcement of the choice of governing law and jurisdiction clauses by courts in the US, the mandatory consumer protection provisions comprised in the EU regimes discussed above208 could mean that the governing law and jurisdiction clauses under the TOS are largely unenforceable against users resident in most of Europe, including the UK – this is due to the potential violation of the *Rome I Regulation* and the *Brussels I Regulation*. 209 A similar outcome will be reached with respect to a user resident in Australia because of the improbability of an Australian court turning a plaintiff away on grounds that it is clearly an 'inappropriate forum'.210

Where an English or Australian court adjudicates a copyrightrelated dispute involving a user in the UK or Australia (as the case may be) arising from or related to the TOS, such a court – even with the requisite jurisdiction for adjudication in respect of foreign copyrights,211 and in spite of having elected the governing law under the TOS – may apply an alternative law to the dispute at hand. Even where the applicable governing law is that elected under the TOS, different laws can apply to questions of subsistence and infringement of copyright.212 For instance, in respect of the originality requirement for a copyright-related dispute, a court in the US is not likely to apply the more lenient originality standard of another jurisdiction.213 With reference to the ownership214 requirement, the law of the country of origin, being the jurisdiction with the most significant relationship to the copyright-protected content, could be the law applied by a US court.215 On the other hand, the law of the state where infringement has occurred may apply to the infringement issue.216 These examples are in no way intended to be exhaustive. Instead, they demonstrate that there will be such foreseeable issues presenting themselves for consideration, in view of the reach of social media platforms in a 'flatter'217 globalised world.

I argue that the choice of governing law and jurisdiction clauses represents the unsuccessful attempts made by social media platforms to ameliorate the uncertainties posed by conflict of laws issues218 when it comes to determining the governing law applicable to a copyrightrelated dispute arising under and relating to the TOS, as well as the jurisdiction in which a court can apply such governing law. These clauses can be unenforceable if they are incompatible with the relevant copyright regime and other laws. Moreover, even if such clauses are valid, they apply to disputes arising between the parties to the TOS (ie, the social media platforms and their users). This leaves open the question of the applicable governing law and the jurisdiction in which a court can adjudicate a copyright-related dispute which arises between a social media user and a copyright holder (whether another user or a third party who has not accepted the TOS).

### IV. Conclusion

This chapter, together with Chapter Two, form the basis for my evaluation in this book of the consistency of the TOS with the copyright regimes in the US, the UK and Australia. I have identified the key terms of the five selected social media platforms that govern or have implications on users' content-generative behaviours. I have also applied, under scenario two, the TOS to the content-generative activities undertaken by Jane and other users in the case study. Out of the total of *eleven* content-generative activities considered, the application of the TOS to as many as *five* of these activities results in breaches of the respective TOS.

I have further discussed the relationship the TOS have with the copyright regimes, in particular, the extent of alignment and incompatibility between the regimes. The TOS are aligned with the copyright regimes to some extent – this is reflected by the incorporation of the notice and takedown mechanism under the *DMCA* into the copyright policies of the five social media platforms studied. In addition, each of these platforms has adopted a termination policy for repeat infringers, in order to be eligible for the *DMCA* safe harbour provision.219 I have argued that the TOS and the relevant copyright regime reinforce one another when they are in alignment. Copyright infringing acts by users can lead to legal consequences under the *DMCA*, and users who repeatedly receive copyright takedown notices may be expelled from such platforms.

On the other hand, three areas give rise to potential incompatibilities between the TOS and the copyright regimes. These incompatibilities are arguably obscured by the oversimplification of complex contractual and copyright issues under the TOS.

The first is that the conferment of 'ownership' of content on a user who creates it under the TOS is not consistent with the concept of ownership under the copyright regime. This label of 'ownership' is misleading: it does not per se entitle the user to the exclusive copyrights to which a copyright holder is entitled under copyright laws, as not all content on social media will be copyright protectable in the first place. Even if the content in question is copyright protected, such content will typically be subject to an unencumbered licence granted in favour of the relevant social media platform. This renders the reference to the 'ownership' of content a limited one for the copyright holder of the content, as he or she has few rights to such content.

The second is that there must be adequate clarity in order for the licensing clauses effectively to allow third party users to use the content shared on social media, in spite of the doctrine of privity. Such an inquiry as to whether these clauses are clear enough will be premised on an assumption that the relevant content is copyright protected in the first place. A strict application of the doctrine of privity can thus undermine the attempt made by social media platforms to confer permissions on third party users to use copyright-protected content.

The third is that the choice of governing law and jurisdiction clauses may be unenforceable, as against a user resident in a state in the US outside California or in another country. This is due not only to a potential incompatibility between the TOS and the relevant copyright regime, but also the contradictions between the TOS and other laws to which a user is subject. On the one hand, in spite of the governing law elected under the TOS, different laws may apply to questions of subsistence and infringement of copyright; on the other, a user from a jurisdiction outside California is subject to the application of conventions, treaties and mandatory domestic laws, including consumer laws. The discussion on conflict of laws issues illustrates the difficulties of determining the governing law that applies to a dispute arising from or related to the TOS, as well as the jurisdiction in which a court can apply such law. Therefore laws in other jurisdictions – whether of contract, copyright or otherwise – may be relevant to a user. I have argued further that these incompatibilities between the TOS and the copyright regimes compromise the effectiveness of copyright laws in regulating the content-generative behaviours of users (ie, in securing users' compliance when they generate content).

Finally, I note that while social media platforms can be exempt under the *DMCA* safe harbour provision from liability for monetary relief, in relation to secondary liability for copyright infringement by their users if conditions are met,220 users of such platforms remain vulnerable to the risks of copyright infringement arising from their content-generative activities on the platforms. Not only have these platforms excluded or limited their liabilities (to the fullest extent permitted by law) in relation to the activities of their users, but users of Facebook, Pinterest and YouTube also have the obligation to indemnify the platforms221 if losses are incurred by such platforms through their uses. Furthermore, the ceding of control over content generated by users to social media platforms and other users under broad licences222 allows for users' engagement in content-generative activities on such platforms. This in turn leads to the consequent increase in the volume of content available, an outcome which helps these platforms to sustain the advertiser-supported business models that most adopt.223 Overall the TOS appear to reflect the unilateral interests of the social media platforms studied – at the expense of their users.

In the next chapter, I will survey the technological features of the five selected social media platforms that influence the content-generative activities undertaken by their users. I will also assess the interaction of these technological features with the copyright regimes in the US, the UK and Australia respectively for alignment and incompatibility. I then present the third of four scenarios in the book to illustrate how the technological features can influence the content-generative activities of Jane and other users in the case study.

### **Notes**


resulted in the removal of content. See Twitter, *Transparency Report: Copyright Notices* <https://transparency.twitter.com/copyright-notices/2013/jul-dec>.


# Chapter Four Influence of the technological features

As I have shown in Chapters Two and Three, each of the copyright regimes and the TOS (ie, terms of service) of social media platforms regulates the content-generative behaviours of social media users in its own way. In Chapter Four I continue this analysis by examining the technological features of the five selected social media platforms, namely Facebook, Pinterest, YouTube, Twitter and Wikipedia. I begin by identifying the technological features that *encourage*, as well as those that *constrain*, 1 the content-generative activities undertaken by users of these platforms. For ease of reference, the platform interfaces on which these technological features are made available to users are captured as screenshots and set out in *Appendix 1.*<sup>2</sup> In particular I highlight the features that encourage the creation, modification and dissemination of content on the platforms surveyed, as well as the features that constrain the same activities. The latter group comprises those features that limit the modification of content; limit the opportunities to engage in further content-generative activities; allow for requests to remove content; and filter content.

I then illustrate, in the following section, under the third out of four scenarios examined in this book, how the identified technological features encourage the content-generative activities undertaken by Jane and other users in the case study. Next, in considering the extent of alignment and incompatibility that the technological features have with the copyright regimes, I discuss the implications of having the existing spread of technological features, which serve to encourage and constrain users in their engagement with content-generative activities. In this regard I argue that the features that encourage content-generative activities on social media platforms can be incompatible with the copyright regimes, as they increase the opportunities for users to engage in content-generative activities, hence on occasion infringing the copyrights held by others. The other features that constrain content generation are in this respect aligned with the copyright regimes, as they reduce the opportunities for users to engage in content-generative activities. In respect of the latter, I elaborate further on how some of the technological features reflect copyright considerations. I make specific references to the copyright regimes in the US, the UK and Australia – consistent with the approach taken in the rest of the book.

This chapter advances the argument in this book that the inconsistencies between the technological features and copyright regimes compromise the effectiveness of copyright laws in regulating the content-generative behaviours of social media users. On the whole, the technological features on social media are observed to 'nudge'3 users towards engaging in content-generative activities – which increases their likelihood of infringing the copyrights of others when they generate content. Finally, the influence of the technological features considered in the chapter, with reference to the case study, constitutes scenario three in the book. This allows for the juxtapositions of the outcomes reached under scenarios one (from Chapter Two) and three (from this chapter), as well as those reached under scenarios two (from Chapter Three) and three (from this chapter). The consistencies between the copyright regimes and the TOS, as well as between the two private regimes (ie, the TOS and the technological features), can then be respectively evaluated.

### I. Technological features

In identifying the technological features on the five social media platforms that encourage and constrain content-generative activities, I relate both the enabling features to the activities they allow users to undertake and the technical constraints to the activities users are restrained from doing. I also set out the screenshots of the platform interfaces incorporating these features in Appendix 1. Given the range of features available on each platform and the varied ends for which they may be employed, I am unable to be exhaustive in identifying and describing these features. Rather, I wish to offer a more systematic way to think about the influence of the technological features on users' content-generative behaviours.

A. Technological features that encourage content-generative activities

#### *1. Creation*

The following are the ways in which users can create content, using the technological features available on the five platforms.

There are options on a user's *Facebook* page to post a 'status update' that can comprise content in text, images or video clips, or any combination of these formats of content. Alternatively, a Facebook user can directly upload content for sharing with other users, in the form of an image or video clip, without writing a status update.4 A user can also comment on the status update of another user.5

A user can share an image he or she has uploaded by 'pinning' it onto his or her pin-board on the *Pinterest* platform.6 Additionally, a user can comment on the images shared on the pin-boards of other users.7 Although images constitute the majority of content shared on Pinterest, a user can also 'pin' audio and video clips on pin-boards and share them with other users.8

The *YouTube* platform is designed in such a way that a user who selects the 'upload' option is directed to tools that allow him or her to create a slideshow from photographs and edit a video clip.9 More specifically, the video editing tool enables a user, among other things, to create new video clips conveniently by combining other uploaded video clips and images,10 as well as to add or substitute audio clips with a 'swapping tool' provided by YouTube, from YouTube's library of approved tracks.11 In addition, on the YouTube platform, a user can also choose to comment on a video clip shared by another user.12

On the *Twitter* platform, a user can easily compose and share a short message called a 'tweet' with his or her followers.13 A user can also respond to another user's 'tweet'.14 The 'tweet' or response to another's 'tweet' can comprise an image or video clip, if the user wishes to upload one.

On the *Wikipedia* platform a user can contribute text, insert links and embed images, audio and video clips within his or her contribution.15

#### *2. Modification*

The following are the ways in which users can modify content, using the technological features available on the five platforms.

A *Facebook* user can choose to modify the content from another user or website in several ways. One form of modification occurs when a user selects the 'share' option on his or her Facebook page to share the post of another user, upon which he or she can comment on the shared post.16 If the user decides to do so, the comment, together with the original post, is arguably a modified composite by the two users. Another form of modification occurs when the 'download' option, which is available when a user expands an image, is used.17 While Facebook does not provide any content editing tools that allow users to re-arrange text, images, video clips and so on, the user can modify an image after downloading it with external tools such as Gimp18 and Photoshop.19

When a *Pinterest* user fancies an image shared on another user's pin-board, the user can choose to 'pin' the same image on his or her own pin-board. If this option is selected by the user, the description provided by the preceding user is automatically re-generated as a comment and can appear to be from the user (instead of from the preceding user). The source of the 'pin' is also displayed below it as a link.20 If the user decides to edit the information accompanying the image, he or she engages in an act of modification. The same can be said even if the user does not change this information, given that the comment and the image are presented on the user's pin-board as originating from the user.

On the *YouTube* platform a user is prompted to comment on a video clip he or she decides to share on other social media platforms, such as Facebook, Pinterest and Twitter, by selecting the 'share' tab on YouTube.21 Given that the user's comment will be presented with the link to the relevant video clip on the YouTube platform when the sharing occurs, the user arguably engages in an act of modification, in respect of the modified composite displayed on such other platform. The video editing tool discussed earlier also enables the modification of content, including content downloaded from YouTube.22 This happens, for example, when many video clips are modified to custom-create one new video clip.

A user on the *Twitter* platform arguably engages in an act of modification when he or she uses the 'reply' function available on Twitter to respond to a 'tweet' of another user.23 The user also modifies a 'tweet' when he or she adds a comment to the original 'tweet' in his or her 'retweet'.24 There is little room for the user to engage in alternative forms of modification, in light of the fact that no content editing tools are made available to users on the Twitter platform.

There are sophisticated technical coordination mechanisms on the *Wikipedia* platform that separate contributions, mark them chronologically and attribute them to specific usernames or internet protocol addresses,25 therefore allowing a contributor to edit content comfortably. The contributing user engages in an act of modification when he or she edits content. Modification can also occur when the user takes the option to download an image, audio or video clip on the platform,26 and then stores the image for subsequent modification with external tools.27 In contrast to the other social media platforms, I note that Wikipedia does not allow its users to comment on content, so there is little room for this alternative form of modification.28

#### *3. Dissemination*

The following are the ways in which users can disseminate content to a wide audience, using the technological features available on the five platforms.

A user can disseminate content in multiple ways on *Facebook*. This happens when the user: posts a 'status update'; comments on another user's post; uses the 'share' option; uses the 'embed post' option;29 chooses to embed an image; or uses the 'send' option for an image.30 Firstly, in respect of a status update, the user gets to choose the audience to whom his or her post is disseminated. This audience can be the public, the user's group of 'friends'31 on Facebook or people on a customised list created by the user. Secondly, when a user comments on the post of another user, the audience will instead be the selected audience of the latter user. Thirdly – if, for instance, a user decides to use the 'share' option available on Facebook – he or she can again select the audience to whom such content is disseminated. The constituent members of the audience will depend on whether the user shares the content on his or her own 'Timeline'; on a friend's 'Timeline'; in a social group to which he or she belongs; or in a private message to a few selected friends on Facebook. Fourthly, a user can also choose the 'embed post' option to place the code of a post on another website, such as his or her personal blog, if such post is publicly available on Facebook. The relevant content is then additionally disseminated to the audience of the other website incorporating the original post. Fifthly, a user can also choose to 'embed' an image put up by another Facebook user on another website. Sixthly, subject to the other user's privacy settings, a user can employ the 'send' option on Facebook to send an image put up by the first user to selected friends on Facebook.

On the *Pinterest* platform a user can disseminate content (be it an image, audio or video clip) to other users who access his or her pin-board simply by 'pinning' such content to the relevant pin-board. In respect of any specific image, audio or video clip, the platform also allows a user to send a 'pin' to another person's email account or to share the 'pin' on platforms including Facebook and Twitter.32 Unless a user 'pins' content on secret boards, visible only to the user and other invited users,33 his or her 'pins' are generally available to other users.

Similar to the Facebook platform, a user can disseminate content in multiple ways on *YouTube*. This happens when the user: uploads a video clip; comments on the video clip of another user; using social plug-ins, shares the video clip on other social media platforms such as Facebook, Pinterest and Twitter; uses the 'embed' option in respect of the video clip, so that the content is accessible to readers of another website; or uses the 'email' option available to distribute the content.34 Firstly, when a video clip is uploaded, the user gets to decide on the audience who can view it – by selecting, using a drop-down menu, whether his or her video clip will be public, private or unlisted.35 Secondly, the audience to whom a user's comment is disseminated will depend on whether the relevant video clip is made public, private or unlisted. Thirdly, when a video clip is shared on other social media platforms, the constituent members of the audience will depend on the user's privacy setting on each of these platforms.36 Fourthly, a video clip embedded on another website, such as a personal blog, will be accessible to readers of that blog. Fifthly, a user disseminates content to a select audience, whose email addresses are specified, when he or she emails the link to a video clip on YouTube to such addresses.

On the *Twitter* platform, a user has the option of embedding a 'tweet'.37 The user can place the 'tweet' on another website where he or she has administrative rights, such as a blog, by using the code given to him or her. The 'tweet' is therefore disseminated to readers of the website. On the other hand, when a user chooses to 're-tweet' a post, or to respond to another user's 'tweet', he or she disseminates this content to a group of Twitter users – the constituent members of this group depends on the respective user's privacy settings.38

Any content, once published on the *Wikipedia* platform, is available to the public – this is consistent with the purpose of the project as an online encyclopedia. A user can either share the link of the Wikipedia page on which content in the form of images, audio and video clips is hosted, or embed such content on a separate website.39 In the latter instance, the content can be accessed by the audience of the website. The user disseminates content in both cases.

### B. Technological features that constrain content-generative activities

In identifying the technological features on the five platforms that constrain content-generative activities, I note that while a user interacts with some of these features at the point *before* the dissemination of content, other features limit subsequent generative possibilities *after* the content is disseminated. Although many of the features are accessible to third parties (including the copyright holders of content) who are not users, I consider the features mainly from a user's perspective for the purpose of this discussion.

#### *1. Limiting the modification of content*

The technological features on the platforms that allow for the retention of the initial presentation of the content and for the identification of the original generator40 of the content arguably constrain content-generative activities. This is so because no matter the amount of modification a user intends to effect to another user's content, these technological features allow for limited modification or remixing of the content.

For example, when a user selects the 'share' option on *Facebook* and disseminates the content of another user in this way, the user who originally uploaded the content can still be identified by his or her username.41 Also the post of user X, who shares the content of another user Y (who in turn extracts the content from another person's 'Timeline' or website), will incorporate the link to the source website.

On the other hand, when a user 'pins' content from another user's pin-board on the *Pinterest* platform, the preceding user is no longer attributed for the 'pin'.42 While the comment accompanying the 'pin' is automatically generated, the user who 're-pins' the content of the preceding user can choose to modify such comment. Notwithstanding this, even if 'pinning' continues through a chain of users, the link to the source website is retained just below the 'pin' and the identification of the original generator of the content remains possible.

Whether a *YouTube* user uses social plug-ins to 'share' a video clip on other social media platforms or simply to 'email' a video clip to a few email addresses, the link to the video clip on the YouTube platform is provided. As such, the user who originally uploaded the video clip can still be identified through his or her username.43 Even where the user decides to 'embed' the code of the video clip on another website such as a blog, viewers of the video clip on the blog can identify the YouTube user who originally uploaded the video clip through his or her username.

When a user decides to 're-tweet' the content of another user on the *Twitter* platform, there is no change to the original 'tweet' in its entirety if he or she does not add a comment to the 're-tweet'.44 Even if a comment is added, the original 'tweet' is presented in an identical manner, just below the comment. Regardless of whether such comment is added, other users on Twitter reading a user's 're-tweet' can identify the user who originally generated the 'tweet' through his or her username. Moreover, even if 'retweeting' continues through a chain of users, the original generator of the 'tweet' can still be identified if the 're-tweet' feature is used.

When a file such as an image or audio clip is uploaded, an associated file page is automatically created on the *Wikipedia* platform. This file page reflects the modifications made to the page to date, the list of pages that embed the file and other technical information about the file. In general, the information on the file traces the activities undertaken in relation to it, although some information such as the file description and copyright information can be edited. This ensures that contributions can mostly be traced back to the original generators of the content with some due diligence.45

### *2. Limiting the opportunities to engage in further content-generative activities*

On the *Twitter* platform, there are word constraints imposed by Twitter on a 'tweet', a 're-tweet' and a response to a 'tweet'.46 This essentially confines a user to a brief message in either instance. The range of contentgenerative activities that can be taken in relation to a brief text message is therefore a narrow one.

Separately, if a user decides to write an article on a subject that does not already exist in the *Wikipedia* repository, there are requirements to be met before the article is published on Wikipedia – any article that is not acceptable is deleted promptly.47 These requirements make it impossible to access the article and hence arguably constrain a user from engaging in further generative activities in relation to the content in such article. Additionally, all content uploaded to the Wikipedia platform – whether in the form of images or otherwise – requires a source and a copyright tag, without which the relevant content will be deleted after a week.48 The deletions obliterate the possibility of the user, and others, from engaging in further generative activities with respect to the same content on the platform.

There are no such equivalent features on the *Facebook, Pinterest* and *YouTube* platforms.

#### *3. Allowing for requests to remove content*

There are technological features on the platforms that a user can utilise to request the removal of content that he or she perceives to be harmful to the user.49 This prevents others from interacting further with such content.

A user can, by selecting an option on a drop-down menu, report a post or image to *Facebook* for reasons including, among other things, offence to personal sensibilities and unauthorised use of intellectual property.50 Facebook can decide to remove the content based on its assessment of the user's report. If the user proceeds with requesting the content's removal on the basis of its violation of his or her copyrights, he or she will be presented with two options. The first is to contact the party the user believes has infringed his or her rights directly, to request the removal of the content. The second is to complete the *DMCA*51 compliant form, made available on the platform, to report a copyright violation on Facebook.52

A user on the *Pinterest* platform has the option to report a 'pin' (ie, of content such as an image, audio or video clip), for reasons including, among other things, that the 'pin' goes against Pinterest's policies and that the 'pin' is his or her intellectual property.53 In the latter case, the user is directed to a page where he or she can complete a *DMCA* compliant online form to report a copyright infringement on Pinterest.54

On the *YouTube* platform, a user who would like a video clip removed can report it to YouTube for various reasons – including, among other things, that the video clip contains violent content and that the video clip infringes his or her rights – by selecting a flag icon positioned under the video clip.55 If the user wishes to request the removal of the video clip on grounds of copyright infringement, he or she can use the *DMCA* compliant form made available on the platform to submit a notice of copyright infringement.56 A user can also report the comment of another user to a video clip on YouTube, by clicking on a tiny arrow positioned at the top right-hand corner of the comment, for 'spam or abuse'.57

On the *Twitter* platform, a user can report a 'tweet' of another user for various reasons – including, among other things, that it displays a sensitive message or that it is abusive and harmful.58 While a user can utilise a *DMCA* compliant online form to request the removal of content, I note that the user is not offered a direct link to the web form when he or she decides to report a 'tweet', unlike the other platforms discussed earlier. This is regardless of the options he or she selects from the lists given. This online form can, however, be accessed when the user searches for it on the platform.59

A user of the *Wikipedia* platform can request the removal of content based on reasons such as inaccuracy or inappropriateness.60 The editor of an article can, for instance, initiate a contributor copyright investigation against a contributing user who is noticed to infringe the copyrights of others on a large scale. The content of this user will be subject to scrutiny and subsequently removed if suspected to be infringing.61 Further, if a user believes that his or her copyright work is infringed on the platform, he or she can send an email to the Wikimedia community to seek resolution, or post a notice stating his or her copyright concerns on a web page created for this purpose.62 Unlike the other platforms discussed above, no *DMCA* compliant form is made available to users on the platform. This means that a *DMCA* compliant copyright notice has to be sent to the email address provided or dispatched by ordinary mail to the Wikimedia Foundation's designated agent.63 In this sense the Wikipedia platform does not make the *DMCA* process readily available to its users through its technological features.

#### *4. Filtering content*

Filtering technologies such as YouTube's content identification (Content Id) system64 that can apply at the point of dissemination of content, or after dissemination, limit subsequent generative possibilities.65

YouTube's Content Id software automatically scans all video clips uploaded on its platform to identify content that may be used without the permission of copyright holders. For this system to work, copyright holders have to provide information about their copyrightprotected content to the system upfront, as well as selecting the policy for YouTube to follow when matches with their copyright-protected content are found. In this respect, YouTube allows copyright holders to choose from the following policies: to mute the audio which matches their music in the relevant video clip; to block the content from further access; to monetise the use of their content, by gaining revenue through advertisements; or to track the viewership statistics of such content.

#### C. Summary

Table 4.1 below serves as a summary of the above discussion on technological features which have been identified as factors that encourage or constrain content-generative activities on Facebook, Pinterest, YouTube, Twitter and Wikipedia.


**Table 4.1 Summary of the technological features that influence the content-generative activities of users across the five selected social media platforms**

**Table 4.1** *(Cont.)*

**Twitter**

**Wikipedia** 'Tweet' (of text,

Option to respond to

'Tweet'

'Embed' option

'Re-tweet' option

Response to a 'tweet'

Contribution of content (whether text,

links, images, audio

and/or video clips)

'Share' option

to share link to

Wikipedia page

'Embed' option

'Re-tweet' option

File page created

such as an image

or audio clip, is

uploaded

when content,

Word constraint

Option to report a 'tweet'

Not applicable

Not applicable

for various reasons,

including for abusive

and harmful content

*DMCA* compliant online

searched for specifically,

as a user is not directed

form available – note

that this form can be

accessed only when

Option to initiate a

for infringement on a

Option to send email to

the Wikimedia community to seek resolution

for infringement of content, or to post a notice

on a web page created

No *DMCA* compliant

online form available for

there is always the option

copyright holders, but

takedown notice to the

designated agent at the

email address or mailing

to send a copyright

address provided

for this purpose

contributor copyright investigation

to such form

large scale

of 140 characters applies to a

're-tweet' and

response to a

Requirements

to be met in an

article contributed by a user,

without which

deleted shortly

after publication

Media uploaded

otherwise) each

require a source

and a copyright

which they will

be scheduled for

tag, without

deletion

(ie, images or

the article will be

'tweet',

'tweet'

another user's 'tweet'

Option to add a

user's 'tweet'

comment when 'retweeting' another

Can edit content with

the contributions are

marked and separately

tools after an image is

downloaded using the

the assurance that

Possible modification with external

'download' option

attributed

Option to comment

Contribution of text

Option to embed

or video clips

images, audio and/

on another user's

image and/or

video clip)

'tweet'

and links



**Application of approach**

**Limiting** 

**modification**

'Share' option to

share on other

social media

'Email' option

'Embed' option

platforms

**Limiting**

**opportunities**

Not applicable

**Technological features that constrain** 

**generative activities**

**Allowing for requests** 

Option to report a video

clip for various reasons,

including for containing

**Filtering content**

Content Id system

identifies through

detecting matches

of content which

could be used

holders

without the consent of copyright

The policy elected

copyright holders

things, the muting

of audio in a video

newgenrtpdf

clip or the blocking of access to

such content)

by the relevant

can be applied

thereafter (ie,

among other

**to remove content**

violent content

shared

Copyright holders

directed to *DMCA* compliant online form, in

relation to a video clip

**Technological features that encourage** 

**content-generative activities**

Prompt to comment on

a video clip that a user

shares on other social

media platforms using

Video editing tool to

modify existing video

clips

the 'share' option

**Dissemination**

Uploading a

Option to comment on the video

clip uploaded by

'Share' option to

media platforms

'Embed' option

'Email' option

share on other social

another user

video clip

**Modification**

**Social** 

**media** 

**platform**

**YouTube** **Creation**

Tool to create a slideshow from images

Video editing tool

clip with existing

Option to comment

on the video clip of

to create video

video clips

another user

### II. Scenario three: the influence of the technological features

The case study on Jane in Chapter One serves as the basis upon which the technological features identified in this chapter can be considered – in relation to their encouragement or constraint of the content-generative activities undertaken by Jane and other users. I consider these activities in the same order as in Chapters Two and Three, where the copyright laws were discussed and the TOS applied to such activities respectively.

It is worth noting that the technological features considered are self-executing to an extent66 that copyright laws and the TOS are not. In this respect, the technological features that constrain content-generative activities are self-executing for a user who generates content. On the other hand, although the technological features that encourage contentgenerative activities facilitate the creation, modification and dissemination of content, the user retains his or her autonomy in deciding whether to do so.67 As such, I can keep the discussion in this section brief, since the technological features *either* enable *or* constrain a user from engaging in content-generative activities.

A. Jane's use of the music video clip on YouTube as her morning alarm

The YouTube platform provides Jane with the option to download the video clip for later use (ie, as her morning alarm).68 To play the video clip as her alarm, Jane needs to use an external application on her mobile device.

B. Jane's 'pinning' of the YouTube music video clip on her pin-board titled 'My Favourite Things' on Pinterest

The option to 'pin' is a main function on the Pinterest platform and has enabled Jane to share the video clip on one of her pin-boards. Moreover, YouTube provides the social plug-ins that enable Jane to share the video clip directly on other platforms, including Pinterest.

### C. Jane's use of Evangeline's earlier commentary on Facebook to create her own commentary

It is noted that Jane did not choose to share or comment on Evangeline's post using the relevant functions on Facebook; instead, she incorporated her views into Evangeline's commentary to create her own. Jane is likely to have woven her views into the original commentary first by using external tools, such as the 'copy and paste' function on her operating system, before editing such commentary within the text box accessed (ie, using the function to post the 'status update'). The latter function is the main function on Facebook around which the sharing of content is premised.

D. Jane's use of multiple photographs of newborn babies available on the pin-boards of other Pinterest users to create a collage to share on Pinterest

The Pinterest platform does not provide Jane with the option to download the images shared on other users' pin-boards for later use; further, there is no image editing tool available on the platform. However, this constraint experienced by Jane can easily be bypassed using external tools. For example, Jane can choose to use the 'save image as' function on her web browser to save the images. She can then modify the images for her collage with image editing tools such as Gimp and Photoshop, before going on to share the collage on Pinterest.

E. Jane's simultaneous sharing of the collage on Facebook and Twitter

The social plug-ins available on the Pinterest platform give Jane the option to share a 'pin' on platforms including Facebook and Twitter. Here they have enabled her to share her collage on both platforms.

### F. Jane's use of the same collage in her blog post on WordPress

Although WordPress is not one of the five social media platforms studied in this book, reproducing content derived from one social media platform on another platform is a common situation. In such an instance, the technological features on the WordPress platform will have to be examined. Similar to Facebook, the technological features on WordPress have enabled Jane, as a user, to write a textual post and to attach an image, such as the collage, with the post.69

### G. Zee's contribution to Wikipedia on 'income inequality' using what Jane has written

If the specific content page on Wikipedia is unprotected and open for editing, Zee can select the 'edit' option available at the top of the page and type in his contribution. However, if the page is protected and locked, Zee can only request to edit the page by submitting an 'edit request' to the editor of the page.70 In addition, there is a substantial amount of information on the Wikipedia platform for users who are keen to edit entries.71 In this sense, the Wikipedia project has enabled Zee to make his contribution.

H. Jane's creation and sharing of a new video clip by way of 'vidding' on YouTube, and subsequently on Facebook

The YouTube platform provides Jane with the option to download the video clips from which the scenes are extracted. The video editing tool on YouTube can then be used to modify these video clips to create the new video clip. Jane can customise the lengths of incorporated video clips, as well as add special effects and songs from an approved library on YouTube, to such a video clip.72 Further, while the 'upload' function can be used to share the new video clip on YouTube, the 'share' function allows Jane to share the video clip on other social media platforms such as Facebook. The technological features on both platforms have enabled Jane's use here.

I. Cheryl's use of 'stills' from Jane's video clip as thumbnail images on her website

Cheryl can download Jane's new video clip on YouTube. In order to extract 'stills' from Jane's video clip, however, she may choose to use YouTube's video editing tool first to pause the video clip at appropriate junctures, after which she can use the screen capture function of her device's operating system to capture the 'stills'. With reference to the discussion under sub-section (F), the technological features available on Cheryl's website are relevant for consideration. If Cheryl's website is a standard blog hosted on WordPress, her re-sizing and sharing of these 'stills' as thumbnail images on her blog are likely to be enabled by the technological features available. Notwithstanding this, because Cheryl needs to use an external tool to extract the 'stills' in the first place, her use is not enabled solely by the technological features on both platforms.

J. Other users' partial use of Jane's collage to create their own, and sharing the same on Pinterest, Facebook and Twitter

As multiple scenarios present themselves for consideration here, depending on which platform the collage is first accessed, it is assumed that the collage is first accessed on the Pinterest platform and thereafter shared by these users on Facebook and Twitter.73 Although Pinterest does not provide such users with the option to download Jane's collage, this constraint can be easily bypassed with external tools such as the 'save image as' function available on their web browsers. Because there is no image editing tool available on all three platforms, the modifications of Jane's collage to create new collages will have to be carried out using other tools. The downloading and subsequent modifications of Jane's collage, as well as the sharing of the new collages across the three platforms, are not enabled solely by their technological features.

### K. Editor Jasper's use of Jane's collage on the cover page of his magazine

It is not clear from which social media platform Jasper downloaded Jane's collage. While the 'download' option is available to a user accessing the collage on the Facebook platform, this is not the case for the Pinterest and Twitter platforms. To download the collage from either of these two platforms, Jasper can choose to use the 'save image as' function available on his web browser. The constraint experienced by users such as Jasper can therefore be easily bypassed with the external tools integrated into their web browsers, operating systems, and so on. In any case, even if the collage is extracted from Facebook, Jasper will still have to rely on external tools to edit Jane's collage for use on his magazine cover.

### III. Relationship with the copyright regimes

In this section I will analyse the relationship the technological features have with the copyright regimes, with reference to the discussions in this chapter and Chapter Two.

As illustrated by the discussion in sub-section (A) of Part I, there are multiple ways in which a user can employ the technological features on the five social media platforms to create, modify and disseminate content. The technological features identified arguably contribute to the overall 'generativity'74 on these platforms,75 facilitating users in their generation of content. This enhanced 'generativity' distinguishes social media from cyberspace in general, and allows for social media's provision of the technological facilities, or 'affordances',76 that further extend the internet's power in connecting people without the need for intermediaries. Such 'generativity' of social media platforms, owing in part to the technological features available on such platforms, encourages users to engage in content-generative activities.77 The technological features that encourage content-generative activities – through increasing exponentially the volume of content on social media and users' opportunities to interact with such content – result in an increase of the possibilities for copyright infringement when users engage in content-generative activities on social media platforms.78 I argue that these features can be incompatible with the copyright regimes.

On the other hand, there are technological features identified in sub-section (B) of Part I that constrain content-generative activities. These features limit the opportunities of users to interact with the relevant content, whether *at* or *after* the point of dissemination of such content. I argue further that such features can reduce the risks of copyright infringement by social media users, and are hence aligned with the copyright regimes. In any case, as illustrated under scenario three in Part II, any constraint on social media experienced by a user when he or she engages in content-generative activities can be readily bypassed with the external tools available on web browsers, operating systems, and so on. On balance, the social media platforms surveyed encourage contentgenerative activities more than they constrain them.

In addition, I also elaborate on how some of the technological features that constrain content-generative activities reflect copyright considerations.

#### A. Attribution of generator of content

The technological features that limit the modification of content arguably reflect copyright principles. In particular, these features operate to ensure, to some extent,79 the identification of the original generator of content (ie, the first user who shares the material on a social media platform, who may or may not be the original author of such content), and also the source of the content. This is limited to the extent that a user can rely on external tools on his or her web browser, operating system and so on to edit the content. An example is Twitter's deletion of 'tweets' incorporating the jokes of freelance writer Olga Lexell after receipt of the copyright notices she submitted.80 Although Twitter users can choose to share the jokes by using the 're-tweeting' function that will ensure the attribution of Olga as the original author of such jokes, users may often choose to do otherwise. Olga will not be attributed for her authorship of the 'tweets' in situations where users decide to re-type the entire jokes out as 'tweets' or to use the 'copy and paste' functions available to them on their operating systems to share the jokes.

With reference to the earlier discussion in Chapter Two81 and the earlier discussion in this chapter,82 I note that the technological features of four out of five platforms (ie, excluding Pinterest) – subject to the adoption of external tools by users – accommodate the right of an author to the attribution for his or her authorship of the relevant copyright work, through identification by username. These features apply consistently regardless of where the generator of content is based, the status of such content (whether copyright protected or not) and the different scopes of application of moral rights in different jurisdictions.

On the other hand, in respect of other moral rights such as the right of integrity, the same features that limit the modification of content83 may nonetheless allow a user to modify a work by commenting on it, before sharing it with others – a situation that could compromise an author's right of integrity to his or her work.84 This happens, for example, when a user modifies a work through commenting in such a manner that it could be prejudicial to the reputation of the author, whose username allows for his or her identification. It is paradoxical that the features that generally safeguard the right of an author to be attributed for the authorship of his or her work also create the opportunities for other moral rights to be violated, such as the author's right of integrity.

Social media platforms therefore appear to recognise that the clear attribution of contributions to individual users is important for users who identify with the content they create on platforms and wish to retain control over such material. This encourages continuing user-led creation, modification and dissemination of content, a key aspect of social media.85 Notwithstanding this, the possibility of using the relevant features for purposes that conflict with copyright principles (in this instance, to violate the right of integrity to a work) dilutes their strength in upholding copyright considerations.

#### B. Notice and takedown mechanisms

As illustrated earlier,86 the *DMCA* notice and takedown mechanism has been integrated into the interfaces with which a user interacts on four of the five platforms – namely Facebook, Pinterest, YouTube and Twitter. Each of these platforms make available to copyright holders *DMCA* compliant online forms that they can easily complete to notify the platforms of copyright infringement and to request the removal of content deemed to be copyright infringing. On the other hand, while the *DMCA* mechanism is part of the copyright policy of Wikipedia, the Wikipedia platform does not provide a similar online form to make the process of initiating the *DMCA* mechanism more convenient for copyright holders. Instead a copyright holder has to complete a notification of copyright infringement manually and arrange for this to be sent to the designated agent, through email or by post.

While social media platforms need to make the *DMCA* mechanism available to copyright holders in order to be exempt under the safe harbour provision from liability for monetary relief, in relation to secondary liability for copyright infringement by their users,87 the accessibility to web forms on each of the Facebook, Pinterest, YouTube and Twitter platforms is a convenience granted to copyright holders on the initiatives of these platforms. On a related note, it is plausible that a substantial volume of non-copyright infringing content (for example, because the use resulting in such content falls under a copyright exception such as fair use in the US) is permanently removed pursuant to this mechanism. A user who receives a notification of copyright infringement may choose not to exercise his or her legal rights by responding with a counter-notice,88 even if the relevant content has been mistakenly removed.89

The *DMCA* mechanism is only one of a few notice and takedown measures highlighted in sub-section (B3) of Part I. Among the five platforms studied, Facebook and Wikipedia additionally offer other self-help or community options through which copyright holders can request the removal of potentially infringing content *without* the initiation of the *DMCA* mechanism. Overall, the measures taken by the five platforms are found to extend beyond the prescriptions of copyright legislation. I argue that these measures reflect and reinforce copyright considerations.

There are similar mechanisms to the *DMCA* mechanism under the *UK Copyright Act*90 and the *Australian Copyright Act*, 91 although these are not specifically considered in this book.

#### C. Filtering out content

Through the Content Id system mentioned above,92 YouTube has integrated filtering technologies on its platform with the intention of filtering out potentially copyright-infringing content. As filtering is a form of technological control that applies automatically, there is often little room to raise disputes against its application, nor to exercise discretion in its implementation.93 In the same vein, automatic enforcement through filtering results in an over-inclusive 'all or nothing' approach to governance that is non-proportionate; most filtering systems are not specific enough to restrict their application only to the targeted content.94 Moreover, given that filtering technologies are better at implementing rules than imposing standards,95 the relevant filtering software can be efficient in detecting matches with content claimed by copyright holders, but cannot assess – with reference to standards – whether a use is exempted under copyright laws, as a fair use or otherwise.96

Because of this limitation of filtering technologies in imposing standards on a case-by-case basis, many of the Content Id claims that result in the removal of content are erroneous. The policies elected by the copyright holders are immediately implemented, and no separate consideration is given to the possible application of copyright exceptions under these claims. It is only when the respondent user files a dispute to a claim, and the copyright holder does not respond within 30 days *or* chooses to release the claim, that the content and its previous settings are restored on YouTube.97 Although this process shares some similarities with the *DMCA* mechanism that allows a respondent user to file a counter-notice in response to a copyright notice he or she receives, there are variations between the two.98 Essentially, the Content Id system is a self-help system99 that exists independently of the *DMCA* mechanism.

With respect to the use of the *DMCA* mechanism discussed earlier and the Content Id system, a case in point is *Lawrence Lessig v Liberation Music Pty Ltd*. 100 Lessig, with the backing of the Electronic Frontier Foundation (EFF), filed a complaint in a US federal court against Melbourne-based Liberation Music Pty Ltd (Liberation Music) for its aggressive enforcement of copyright – in insisting that YouTube remove the video clip of a lecture uploaded by Lessig featuring clips from the song 'Lisztomania' by the French band Phoenix (on Liberation Music's label).101 The clips were included in Lessig's lecture delivered at a Creative Commons conference to demonstrate how young people are expressing themselves on the internet. Lessig's video clip was initially blocked by YouTube's Content Id system as having content licensed by US-based Viacom International Inc., and Lessig responded by filing a notice to dispute the block. Just as YouTube was about to restore access to the clip, Liberation Music submitted a copyright notice under the *DMCA*; in response Lessig filed a counter-notice, although he retracted this when Liberation Music threatened to sue him in the Massachusetts court. Subsequently Lessig and the EFF decided to file a complaint against Liberation Music, relying on the argument that Lessig's use of the clips for purposes such as criticism, comment, teaching and scholarship qualified as fair use.

The case was finally settled in favour of Lessig in February 2014 – with Liberation Music agreeing under a settlement agreement that Lessig's use qualified both as fair use under the copyright laws of US and as fair dealing under the copyright laws of Australia.102 This case brings to light the possibility that a large volume of non-copyright infringing content can be removed under the *DMCA* mechanism and the Content Id system without due consideration being given to the application of copyright exceptions, including fair use. It is a unique situation, in that Lessig happens to be a renowned theorist on cyberspace who dared to challenge Liberation Music's claim.

Just as is the case with the requests to remove content – whether under the *DMCA* or otherwise – if the majority of Content Id claims go undisputed, the subsequent generative possibilities in relation to the content unjustifiably removed103 will be obliterated. Thus the Content Id system results in a similar effect to the notice and takedown measures discussed in the earlier sub-section. Again I argue that it reflects and reinforces copyright considerations over and beyond legislative prescriptions.

### IV. Conclusion

This chapter, together with Chapter Two, forms the basis for this book's evaluation of the consistency of the technological features of social media platforms with the application of copyright laws. I have identified the technological features that both encourage and constrain contentgenerative activities undertaken by users of these platforms. I have also illustrated, under scenario three, how the identified technological features on such platforms enable the content-generative activities of Jane and other users in the case study. Out of a total of *eleven* contentgenerative activities considered, as many as *four* of these activities can be carried out using solely the technological features on the relevant platforms. I have further noted that where Jane and the other users face constraints in their content-generative activities, these constraints can be readily bypassed with external tools.

I have discussed the relationship the technological features have with the copyright regimes of the US, the UK and Australia. I have argued that the 'generativity'104 of social media platforms, in part due to their integration of technological features that encourage the creation, modification and dissemination of content, can increase the possibilities for copyright infringement on such platforms. These features can be incompatible with the copyright regimes. On the other hand, the technological features that constrain content-generative activities limit the opportunities for users to interact with content and hence correspondingly reduce the risks of copyright infringement by users of the platforms. These features are aligned with the copyright regimes, although their influence is limited since the constraints experienced by users can easily be overcome with the other tools available on their web browsers, operating systems and so on. Thus, on balance, the social media platforms encourage content-generative activities more than they constrain them.

I have additionally elaborated on how some of the features that constrain content-generative activities reflect copyright considerations, beyond limiting the opportunities for users to engage in content-generative activities. These are the features which: ensure the attribution of the authorship of content; allow for copyright holders to request the removal of content; and filter out content with direct matches to the content of copyright holders. While the first category of features safeguards the moral right of an author to be attributed for his or her authorship of a work, the same features create opportunities for the violation of another moral right (ie, the right of integrity to a work) – this dilutes the strength of such features in upholding copyright considerations. In contrast, the latter two categories of features distinctively reflect and reinforce copyright considerations beyond legislative prescriptions.

I observe that users are, to a large extent, 'nudged'105 to engage in content-generative activities on social media platforms. However, both the availability of the notice and takedown mechanisms, as well as the employment of filtering technologies on platforms such as YouTube, are strong reminders of the potential application of copyright laws to the content-generative activities on social media.

In the next chapter I will discuss prior empirical studies that illuminate the perceptions and awareness users have of intellectual property in general, or of copyright laws more specifically. I will also draw on scenarios one, two and three – in Chapters Two, Three and Four respectively – to examine how the regulatory factors of copyright laws, the TOS and the technological services impact, *in toto*, on the content-generative behaviours of users across the five selected social media platforms. I will then analyse the findings from these studies, together with the arguments made in the earlier chapters.

### **Notes**


# Chapter Five How the terms of service and technological features affect copyright's regulation of content-generative behaviours

At the beginning of this chapter I consider earlier empirical studies conducted on the perceptions and awareness users have of intellectual property in general, or of copyright laws more specifically. This enables me to analyse the findings from these studies along with the arguments made in the earlier chapters of this book from three angles. Firstly, I discuss how users relate to copyright laws and how this affects their awareness of such laws. Secondly, I examine how the TOS (ie, terms of service) affect users' awareness of copyright laws. Thirdly, I consider the influence of the technological features on users' perceptions of copyright laws. I also refer to the earlier discussions on the relationship between each of the TOS and the technological features vis-à-vis the copyright regime.

I then bring together the conclusions arrived at under scenarios one,1 two2 and three3 in the earlier chapters, in respect of the application of copyright laws, the TOS and the technological features respectively. The purpose of this is to evaluate the consistency of regulatory signals users receive from the following pairs of regulatory factors: the copyright regimes and the TOS; the copyright regimes and the technological features; and the TOS and the technological features.

### I. Perceptions and awareness of copyright laws

I examine the following studies on the assumption that users are more likely to comply with copyright laws in generating content on social media when such laws are perceived to restrict what is illegitimate4 and when users understand how these laws apply to regulate their content-generative activities. The studies are selected for the purpose of this book as they are of relatively recent vintage and their findings can illuminate the perceptions and awareness of copyright laws in users of social media platforms. These findings pertain to: the perceived irrelevance and poor understanding of copyright laws displayed by many users; the expectation for digital content to be free; and the greater impact of perceptions over awareness of copyright laws on users' compliance with copyright laws. The findings will be analysed together with the arguments made in the earlier chapters.

#### A. Prior studies

#### *1. Perceived irrelevance and poor understanding of copyright laws*

A study conducted on the perceptions and awareness of European users of intellectual property between December 2012 and August 2013 reveals that there is a gap between the subjective understanding which such users claim to have of intellectual property and the objective knowledge which they actually possess.5 Under this study, 73 per cent of the EU citizens surveyed claimed to have a good understanding of the term 'intellectual property', although only 13 per cent of the respondents demonstrated a good knowledge of what it actually means.6 Similarly, 85 per cent of those surveyed stated that they have a good understanding of the term 'copyright'.7 However, their objective knowledge again painted a different picture. For example, when presented with the statement 'copyright allows all the creators to share freely everything they create', 49 per cent of the respondents stated that this statement is true and 12 per cent did not know.8 Only 39 per cent of those surveyed answered that this statement is false.9 Furthermore, the study found that 42 per cent of the respondents considered it acceptable to download copyright-protected content when it was for personal use.10 In showing that users' objective levels of knowledge of intellectual property and its components is substantially lower than their declared understanding,11 this study supports the observation made by the cartoonist and film-maker Nina Paley that people 'do not know that they do not know' how copyright laws work; they have only a vague idea that copyright laws protect their rights in their intellectual property.12 The qualitative research carried out in the study, in addition to its quantitative research, also reflected that notions of intellectual property were perceived by many respondents to be irrelevant to them, and instead to affect mainly a small part of society, including large corporations, successful artists and lawyers.13

The study illuminates the poor understanding of copyright laws that users have.14 It also reveals their perceptions of the acceptability of accessing digital copyright-protected content illegally for personal use, as well as the disconnection they experience with intellectual property in general. These findings are reflective of the awareness and perceptions of copyright laws that users have on social media when they engage in content-generative activities. The limitations of this study's applicability to this book are that the questions were posed to those surveyed to gauge their perceptions and understanding of *intellectual property in general*, including of patents and trademarks, rather than of copyright laws in particular. Moreover, while references were made in the study to the explosion of digital content and technology15 – the circumstances that allow for the proliferation of social media platforms – the study was not specifically designed to gauge the awareness and perceptions of social media users to copyright laws.

#### *2. Expectation that digital content is free*

Another survey conducted in 2012 by the Pew Research Center16 in the US gauged the views of arts organisations on the overall impact of technology on arts.17 Of the arts organisations surveyed, 74 per cent agreed that the internet and related technologies have created an expectation among some audiences that all digital content should be free.18 Notably, this survey draws on the views of right-holder arts organisations, rather than their audiences.

Similarly, a YouGov19 report released in 201420 in the UK reveals the consensus held by its respondents that digital content should be free, or at least cheaper than the physical equivalent. This view is noted to be more prominent among children and young adults.21 Of the children aged between 8 to 15 years old who were interviewed, 49 per cent strongly agreed that a person should be able to download or access content for free from the internet. Similarly, 49 per cent of the young adults between 16 to 24 years old who were interviewed held the view that online content should be free.22 Cost concerns and the availability of content, as well as the convenience of accessing content, are identified as key motivators explaining why file-sharing continues to occur among children and young adults.23 The group of children aged between 8 and 15 years old was found to have an above average propensity to agree that file-sharing websites are easy to use and that file-sharing has become 'a normal thing to do'.24 Separately, while up to 16 per cent of the same group strongly agreed that it is ethically wrong to access content without the creator's permission, only 7 per cent of the interviewees agreed that file-sharing is a form of theft.25

Although the survey was conducted in relation to the use of filesharing websites by children and young adults, the discovery of a consensus within this group that digital content should be free is relevant to this book. I argue that this general expectation that such content is free accounts, to some extent, for users' responses to copyright laws. I also argue that the convenience and ease of using the technological features available on social media platforms – just as is the case with file-sharing websites – encourage users to engage in content-generative activities on social media. Such users are more likely to see their content-generative activities as 'the normal thing to do' – in this sense conflating what they perceive to be 'normal' with what is actually legitimate.

Yet another survey conducted in 2014 by the Intellectual Property Office of Singapore26 shows that the percentage of respondents surveyed who viewed downloading from unauthorised sources or unauthorised file-sharing as forms of theft has dropped since 2010.27 This is in spite of the fact that most of the users surveyed were both aware that infringements of intellectual property rights could result in penalties under existing laws and agreed that it is important to protect the works of intellectual property creators.28 The findings from this survey are relevant to the book insofar as they further exemplify how users generally expect to be able to use digital content available on the internet freely.

#### *3. Greater impact of perceptions on compliance with copyright laws*

Finally, a study conducted before 2009 to assess the factors that deter online copyright infringement – on a sample of university students in the US – reveals that consensus with copyright laws plays a more important role in deterring future file-sharing activities than an awareness of copyright laws.29 'Consensus with copyright laws' was defined under this study as the degree to which a user of a file-sharing service agrees that copyright laws on file-sharing are reasonable and updated, in the light of existing technologies. On the other hand, an 'awareness of copyright laws' was defined as the extent to which the same user is informed of copyright laws in relation to his or her file-sharing activities.30

The scope of the study here is confined to file-sharing activities, rather than broader content-generative activities on social media. Nonetheless, its finding is relevant to this book. In this respect I argue that the consensus with copyright laws referred to under this study contributes to users' perceptions of the relevance and legitimacy of copyright laws in regulating their content-generative activities. I argue further that such perceived legitimacy contributes to the effectiveness of copyright laws in securing compliance from social media users when they generate content.31 This means that these users are more likely to comply with copyright laws when they perceive such laws to be reasonable in regulating their content-generative activities on social media.

### B. Users' perceptions and awareness of copyright laws

In this sub-section I analyse the findings of the earlier studies highlighted above with the arguments made in Chapter Two, in relation to the regulation of users' content-generative behaviours by copyright laws. The purpose of this analysis is to understand better how users relate to copyright laws on social media. The effectiveness of copyright laws in regulating users' content-generative behaviours on social media depends on their ability to secure compliance from users, including deterring users from undertaking potentially copyright-infringing activities when they generate content.32 With reference to the last study cited in sub-section (A), users' perceptions of legitimacy have a bigger impact in deterring behaviours not compliant with copyright laws than the awareness of copyright laws per se. In this respect, users' lack of consensus that copyright laws are reasonable and updated, as well as their expectations that digital content is free, could contribute to the perceived illegitimacy of copyright laws. Where copyright laws are perceived as illegitimate, their effectiveness in securing compliance from users will foreseeably be compromised.

At this juncture, I postulate that:


Users' awareness of copyright laws (ie, an understanding of how they apply to their content-generative activities) has an impact on their compliance with copyright laws on social media. Copyright laws have been criticised for being counter-intuitive to ordinary people who are not copyright lawyers.34 Many people do not believe that copyright laws can be applied to their activities and are hence of relevance to them.35 Litman has suggested that this is because there is 'paucity', or inadequacy, of language under the copyright statutes in the US, the UK and Australia that relates back to the behaviours of individuals who are consuming rather than exploiting copyright-protected material.36

Moreover, particularly in relation to content-generative activities on social media, the focus against exploitation of copyright-protected content draws an artificial distinction between copyright holders and users. In modifying the content shared on social media to create new content, users may be inclined to assume that their conduct is lawful; once the content created by these users qualifies for copyright protection, such users – now copyright holders of the resulting new content – could be keen to enforce their copyrights against other users. As can be seen, users who actively engage in content-generative activities are also copyright holders of some content.

In addition, copyright laws comprise mainly complex rules. In this respect I find Black's characterisation of a rule useful. According to her, a rule's structure is made up of three main 'elements' or characteristics – precision, complexity and clarity.37 The variation of these three 'elements' within the rules creates rules of three broad types – 'bright line' rules,38 principles39 and complex rules.40 The level of complexity within detailed copyright rules framed in favour of copyright holders gives rise to uncertainties of interpretation41 in their application to the content-generative activities they purport to regulate.

With reference to the discussion conducted on how copyright rules in the US, the UK and Australia apply to content-generative activities in Chapter Two,42 ascertaining whether these activities are copyright infringing requires the issues of copyright subsistence and infringement set out below to be addressed:


The above issues have to be resolved with reference to the complex rules set out under the respective copyright statute. These complexities will prove challenging for courts, let alone regular social media users, to resolve. In addition, the application of copyright rules to contentgenerative activities and the corresponding outcomes are at times unpredictable, due to the uniqueness of each circumstance resulting in the generation of content on social media.

To compound the difficulties further, the copyright rules applicable to the content-generative activities of users based in different jurisdictions may vary, due to conflict of laws considerations. Scenario one has shown that the application of copyright rules in three jurisdictions – the US, the UK and Australia – to the content-generative activities of users can result in different outcomes being reached on the copyright liabilities of the respective users.63 Moreover, even if the choice of governing law and jurisdiction made under the TOS in a copyright-related dispute is upheld, different laws may apply to questions of subsistence and infringement of copyright.64

In the absence of copyright rules that users can relate to, and the overall complexity of those rules,65 I argue that the low levels of public awareness or understanding of copyright laws are amplified in social media users. It is therefore not surprising that a large majority of such users will not know how to apply the complex copyright rules to their content-generative activities, in order to ascertain whether they are acting in contravention of copyright laws.

#### C. Terms of service and users' awareness of copyright laws

In this sub-section I consider how the TOS of social media platforms can affect users' awareness of copyright laws. In doing so, I refer to the discussion of the relationship between the TOS and the copyright regimes in Chapter Three.66 The purpose of this is to acquire a better understanding of how the TOS can influence, through affecting social media users' awareness of copyright laws, their compliance with those laws when they generate content.

In that chapter I have argued that while any alignment with the copyright regimes will reinforce the latter, any potential incompatibility with the copyright regimes compromises the effectiveness of copyright laws in regulating users' content-generative behaviours.67 The TOS and the relevant copyright regime68 are aligned to the extent that the *DMCA* notice and takedown mechanism is integrated into each of the copyright policies of the social media platforms studied.69 In addition, such platforms reserve their rights to disable the accounts of users who have received more than one *DMCA* takedown notice.70 Apart from limiting the monetary relief available from social media platforms arising in relation to potential secondary liability for the copyright infringement of their users under the safe harbour provisions,71 these provisions in the TOS arguably remind users undertaking content-generative activities on the platforms to be mindful of complying with copyright laws. If this reminder is effective, the TOS exemplify how private ordering can promote users' compliance with copyright laws, through increasing their awareness of those laws.72

Notwithstanding the above, there are potential incompatibilities between the two regimes.73 Pursuant to the ownership and licensing clauses of the TOS of the social media platforms studied, a user grants the relevant platform an unencumbered licence to use the content he or she owns, as well as another (typically more limited) licence to other users to use his or her content. In the case of the latter, the scope of permission granted varies under the TOS of the platforms surveyed. The grant of a licence by a user who generates content to the relevant social media platform and its users is necessary because of the advertiser-supported business models that many social media platforms, including Facebook, Pinterest, YouTube and Twitter, adopt. Reliance on advertising revenue would mean, as mentioned earlier,74 that these platforms have an interest in attracting more users and accumulating more content, generated through their activities.

Further, the references made to the ownership of content by its users under the TOS may lead such users to assume that the content they generate is copyright protected and that they hold rights to restrict their use. However, the majority of such content on social media may not qualify for copyright protection in the first place, due to a failure to meet copyright subsistence requirements such as for originality75 and fixation (or recording and reduction to material form).76 Even if the content shared on social media meets the subsistence requirements and is hence copyright protected, its uses may be unrestricted. No further consent is to be sought, either because the elements of infringement are not made out or because the infringing uses fall under existing copyright exceptions such as fair use and fair dealing.

In other instances, where content is copyright protected, the licence granted under the relevant TOS may not cover the uses by third parties of such content, particularly when the intention to benefit these third parties is less clearly expressed. This is the case under the Facebook Statement and the Twitter Terms.77 Because of these potential incompatibilities, I posit that the TOS, through their incorporation of ownership and licensing clauses, are responsible for fostering the following expectations in social media users:


The term 'copyright holder' in paragraph (i) above has a particular meaning in this context, and is intended to refer to users who believe that their content is accorded copyright protection even if this is not actually the case. 'Copyright holders' also include copyright holders of copyright-protected content who overreach their copyrights without considering the application of copyright exceptions. I further posit that the first expectation encourages 'copyright holders' to overreach by issuing copyright notices under the *DMCA* for alleged infringements of their rights. The threat of a copyright lawsuit in the form of a copyright notice could deter further legitimate uses of such content by other users.78 The second expectation contradicts the first. On a plain reading of the TOS, a user of another's content may be led to believe that his or her use is contractually licensed, although the TOS may be too narrowly drafted to sanction such use.79 Given that the provisions of these TOS could be incompatible with the copyright regime, they have the potential to encourage 'copyright holders' to overreach their rights under copyright laws, as they concurrently mislead users to think that their uses of copyright-protected content are licensed.

The TOS regulate users' content-generative behaviours by way of rules, just as is the case with copyright laws. Also, the TOS fit the description of principles (ie, the second type of rules) identified by Black in subsection (B).80 While the TOS are concise, the outcomes reached pursuant to the application of the TOS are not certain. This is because the application of the TOS to copyright-related activities necessarily refers back to the detailed rules under copyright laws – in particular, the TOS examined incorporate copyright policies that are aligned with the *DMCA*. Therefore the application of the TOS is less straightforward than it appears.

An assessment by a user as to whether a copyright-related activity has breached the relevant TOS could arguably be affected by the understandings of copyright laws embodied in the TOS – these are the expectations outlined which the TOS foster in 'copyright holders' and users. Such expectations, which potentially lead 'copyright holders' to misunderstand the scope of copyright protection and users to assume that copyright laws will not apply to their content-generative activities, could have an adverse impact on users' awareness of, and henceforth compliance with, copyright laws.

#### D. Technological features and users' perceptions of copyright laws

In this sub-section I consider how the technological features of social media platforms shape users' perceptions of copyright laws. I will refer to the discussion of the relationship between the technological features and the copyright regimes in Chapter Four.81 This is done to acquire a better understanding of how the technological features both influence the content-generative behaviours of users and, at the same time, shape users' perceptions of copyright laws.

In that chapter I argued that the technological features which encourage the creation, modification and dissemination of content contribute to the 'generativity'82 of the social media platforms examined and can be incompatible with the copyright regimes. This is because these features increase the possibilities for copyright infringement on social media.83 I also argued that the technological features which constrain content-generative activities are aligned with the copyright regimes, as they reduce the risks of copyright infringement by social media users. In addition, I elaborated on how some of these features reflect copyright considerations, as set out below:


The technological features limiting the modification of content ensure that a consistent approach in terms of attribution is applied. This is regardless of where the generator of content is based, the copyright protect-ability of such content *or* the different scopes of application of moral rights in the US, the UK and Australia.87 On the other hand, the same features permit the modification of the content that could occur at the expense of the right of integrity a copyright holder has to his or her content. This happens when a user modifies the content to the extent that it is prejudicial to the reputation of the copyright holder. Whether the technological features available to a user are employed in a way that respects or infringes the moral rights of others ultimately depends on the choice the user makes when he or she generates content.88

At the same time, the ease with which content can be removed pursuant to the use of the notice and takedown mechanisms made available to copyright holders, as well as the Content Id system on YouTube, can result in the unjustified removal of a large volume of non-copyright infringing content.89 Given the convenience of using these technological features, such features make it easy for 'copyright holders' to request content to be removed – whether under the *DMCA* or otherwise – while concurrently allowing them to make claims that go beyond their proper entitlements. In this respect it has been suggested that users receiving erroneous notices requesting the removal of content, or of content matches under a filtering system (such as the Content Id system on YouTube), are inclined towards avoiding the risk of copyright litigation.90 As such, these users are less likely to respond with counter-notices.91

I argue further that the encouragement of content-generative behaviours by the technological features identified, combined with the overall 'generativity' of social media platforms,92 reinforce the expectation of users that digital content is free. This is particularly so as the technological features make it convenient, easy and 'normal' for users to engage in content-generative activities. In line with the findings from the YouGov report on file-sharing services discussed above,93 the availability of technological features on social media may have the effect of fostering the expectation in users that the digital content available on social media is free. It is conceivable that many users could be inclined to assume that the content-generative activities they are 'nudged'94 to undertake are legitimate and will not attract liabilities under copyright laws.

Therefore there is a disjunction between what 'copyright holders' can do to restrict use of their content and what users expect. The expectations of users may vary from the actual practices of 'copyright holders' on social media. I argue that this disjunction has an adverse impact on users' perceptions of, and hence compliance with, copyright laws. The gap between users' expectations and the practices of 'copyright holders' makes it likely that social media users will perceive copyright laws as unreasonable, outdated and irrelevant, in relation to their content-generative activities.

Although the technological features do not consist of express rules, unlike copyright laws and the TOS,95 their impact on users' contentgenerative behaviours is akin to the influence of bright-line rules.96 Because of the self-executing nature of the technological features surveyed in this book (ie, these features either enable or constrain specific activities), there is more certainty in the outcomes reached via their usage. On balance, the technological features on social media platforms encourage content-generative activities more than they constrain them.97

Notwithstanding this, the features 'copyright holders' can use to request the removal of content or to filter out content (for instance, with the Content Id system on YouTube) could result in the obliteration of subsequent generative possibilities in relation to content unjustifiably removed. Such features can operate over-inclusively,98 as they enforce copyright rules in a bright-line manner and may not take into account the complex rules that copyright laws comprise. For example, the Content Id system notifies the 'copyright holder' of content matches, upon which he or she can choose to block other users' access to the relevant contact. This can happen regardless of whether the use constitutes a fair use in the US.

Overall, the technological features arguably have a significant impact on users' compliance with copyright laws when they generate content, through their shaping of users' perceptions of copyright laws. This is supported by the finding discussed earlier: that users' consensus with copyright laws (ie, that they are reasonable and updated) plays a more important role than their awareness of copyright laws in deterring them from undertaking copyright-infringing activities.99

### II. Scenario four: regulation by copyright laws, the terms of service and technological features

The premise of the inquiry in this section is to compare copyright laws with other regulatory factors on social media. Here I recall how copyright laws and the TOS could apply to the activities of Jane and the other users in the case study. I also recall how the technological features could influence these activities. I do so to illustrate how social media users can be pulled in different directions by these regulatory factors. For this purpose, under scenario four, the consistency of the regulatory signals given by each of copyright laws, the TOS and the technological features to users, in relation to the specific content-generative activity, will be evaluated in a systematic way. The extent to which the positions reached are the same will be assessed through applying the following pairs of factors: firstly, the copyright laws and the TOS; secondly, the copyright laws and the technological features; and thirdly, the TOS and the technological features. These activities will be considered in the same order as under the respective scenarios in Chapters Two, Three and Four. The extent of consistency between any pair of factors examined – in relation to each activity – will be represented using 'Harvey Balls'100 in tables following the discussions. Where there is consistency between the pair of factors examined, a completely shaded 'Harvey Ball' is used to represent this; where there is inconsistency between the pair of factors examined, an unshaded 'Harvey Ball' is used instead. This allows me to consider the extent to which copyright laws remain an effective regulator of content-generative behaviours, and can hence secure compliance from social media users such as Jane.

### A. Jane's use of the music video clip on YouTube as her morning alarm

The earlier discussion suggested that Jane's use has infringed copyright laws in the UK and in Australia, but not in the US.101 Further, her use is licensed under the YouTube Terms.102 Where there is copyright infringement (ie, under the *UK Copyright Act* and the *Australian Copyright Act*) and yet Jane has not acted in breach of the relevant TOS, the copyright regimes and the TOS are inconsistent. Therefore unshaded circles are used to represent these inconsistencies between the respective copyright regimes and the TOS. With respect to the copyright regime in the US, as against the TOS, a shaded circle is used to represent the consistency.

Although the YouTube platform allows Jane to download the video clip, she needs to use an external application on her mobile device to play the video clip as her alarm.103 Where there is copyright infringement and Jane's use is not enabled by the relevant platform, the copyright regimes and the technological features are consistent. Here shaded circles represent these consistencies with respect to each of the *UK Copyright Act* and the *Australian Copyright Act*, and to the technological features. On the other hand an unshaded circle represents the inconsistency between the copyright regime in the US, as against the technological features.

The TOS and the technological features are inconsistent. Jane's use, although licensed under the YouTube Terms, is not enabled solely by YouTube's technological features. An unshaded circle represents this inconsistency.

Similar representations for the consistencies and inconsistencies of the regulatory signals given by each of copyright laws, the TOS and the technological features will be adopted in respect of the other contentgenerative activities set out below.


B. Jane's 'pinning' of the YouTube music video clip on her pin-board titled 'My Favourite Things' on Pinterest

The earlier discussion indicated that Jane's use has infringed copyright laws in the US, the UK and Australia.104 Further, her use is licensed under the YouTube Terms.105 Because there is copyright infringement in all three jurisdictions, although there is no breach of the relevant TOS, the copyright regimes are inconsistent with the TOS in all three instances.

The 'pin' option on Pinterest has enabled Jane to share the video clip with other users on this platform. Moreover, YouTube provides social plug-ins that enable Jane's sharing of the video clip directly on other platforms, including Pinterest.106 Where there is copyright infringement and yet Jane's use is enabled on the relevant platforms, the copyright regimes and the technological features are inconsistent. There are hence inconsistencies across all three jurisdictions.

The TOS and the technological features are consistent. Jane's use, licensed under the YouTube Terms, is also enabled by the technological features on Pinterest and YouTube.


#### **Table 5.2 Consistency table 2**

C. Jane's use of Evangeline's earlier commentary on Facebook to create her own commentary

The earlier discussion suggested that Jane's use has infringed copyright laws in the UK and in Australia, but not in the US.107 Further, her use is likely to be licensed under the Facebook Statement.108 Where there is copyright infringement (ie, under the *UK Copyright Act* and the *Australian Copyright Act*) and yet Jane has not breached the relevant TOS, the respective copyright regimes and the TOS are inconsistent. However, the copyright regime in the US is consistent with the TOS.

Jane has to use external tools, such as the 'copy and paste' function on her operating system, before she can weave her comments into Evangeline's commentary and share the new commentary using the function on Facebook to post the 'status update'. 109 Where there is copyright infringement and Jane's use requires external tools on the relevant platform, the copyright regimes and the technological features are consistent. While the UK and Australian copyright regimes are hence consistent with the technological features, the US copyright regime is inconsistent.

The TOS and the technological features are inconsistent. Jane's use, although licensed under the Facebook Statement, is not one enabled solely by the technological features on Facebook.


#### **Table 5.3 Consistency table 3**

D. Jane's use of multiple photographs of newborn babies available on the pin-boards of other Pinterest users to create a collage to share on Pinterest

Based on the earlier discussion, Jane's use has infringed copyright laws in Australia, but not in the US and the UK.110 Further, her use is licensed under the Pinterest Terms.111 Where there is copyright infringement (ie, under the *Australian Copyright Act*) and yet Jane has not acted in breach of the relevant TOS, the copyright regime and the TOS are inconsistent. However, each of the copyright regimes in the US and the UK is consistent with the TOS.

Jane has to use external tools, such as the 'save image as' function on her web browser, as well as image editing tools, before she can create and share her collage on Pinterest.112 Where there is copyright infringement and Jane's use requires external tools on the relevant platform, the copyright regime and the technological features are consistent. While the Australian copyright regime is hence consistent with the technological features, the US and the UK copyright regimes are inconsistent.

The TOS and the technological features are inconsistent. Jane's use is licensed under the Pinterest Terms, but is not enabled solely by the technological features on Pinterest.


**Table 5.4 Consistency table 4**

E. Jane's simultaneous sharing of the collage on Facebook and Twitter

For the same reasons as under sub-section (D), Jane's use has infringed copyright laws in Australia, but not in the US and the UK.113 Further, her use is licensed under each of the Pinterest Terms, the Facebook Statement and the Twitter Terms.114 Where there is copyright infringement (ie, under the *Australian Copyright Act*) and yet Jane has not acted in breach of the relevant TOS, the copyright regime and the TOS are inconsistent. However, each of the copyright regimes in the US and the UK is consistent with the TOS.

Jane is enabled by the social plug-ins on the Pinterest platform to share a 'pin' directly on Facebook and Twitter.115 Where there is copyright infringement and Jane's use is enabled on the relevant platform, the copyright regime and the technological features are inconsistent. While the Australian copyright regime is hence inconsistent with the technological features, the US and the UK copyright regimes are consistent.

The TOS and the technological features are consistent. Jane's use, licensed under each of the relevant TOS, is also enabled solely by the technological features on Pinterest.


**Table 5.5 Consistency table 5**

### F. Jane's use of the same collage in her blog post on WordPress

For the same reasons as under sub-section (D), Jane's use has infringed copyright laws in Australia, but not in the US and the UK.116 Further, her use is not licensed under the Pinterest Terms and WordPress's TOS.117 Where there is copyright infringement (ie, under the *Australian Copyright Act*) and Jane has breached the relevant TOS, the copyright regime and the TOS are consistent. However, each of the copyright regimes in the US and the UK is inconsistent with the TOS.

Jane's use (ie, the attaching of the collage to her blog post) is enabled by the technological features on WordPress.118 Where there is copyright infringement and yet Jane's use is enabled on the relevant platform, the copyright regime and the technological features are inconsistent. While the Australian copyright regime is hence inconsistent with the technological features, the US and the UK copyright regimes are consistent.

The TOS and the technological features are inconsistent. Although Jane's use is not licensed under the Pinterest Terms and WordPress's TOS, it is enabled solely by the technological features on WordPress.


#### **Table 5.6 Consistency table 6**

G. Zee's contribution to Wikipedia on 'income inequality' using what Jane has written

Based on the earlier discussion, Zee's use has infringed copyright laws in the UK and in Australia, but not in the US.119 Further, his use is likely to be licensed under the Facebook Statement and the Wikipedia Terms.120 Where there is copyright infringement (ie, under the *UK Copyright Act* and the *Australian Copyright Act*) and yet Zee has not breached the relevant TOS, the respective copyright regime and the TOS are inconsistent. However, the copyright regime in the US is consistent with the TOS.

Zee's contribution of content is enabled by the technological features on Wikipedia.121 Where there is copyright infringement and yet Zee's use is enabled on the relevant platform, the copyright regime and the technological features are inconsistent. While the UK and Australian copyright regimes are hence inconsistent with the technological features, the US copyright regime is consistent.

The TOS and the technological features are consistent. Zee's use, licensed under both the Facebook Statement and the Wikipedia Terms, is also enabled solely by the technological features on Wikipedia.


**Table 5.7 Consistency table 7**

H. Jane's creation and sharing of a new video clip by way of 'vidding' on YouTube, and subsequently on Facebook

The earlier discussion indicated that Jane's use has infringed laws in the US and Australia, but not in the UK.122 Further, her use is not licensed under the YouTube Terms and the Facebook Statement.123 Where there is copyright infringement (ie, under the *US Copyright Act* and the *Australian Copyright Act*) and Jane has breached the relevant TOS, the copyright regimes and the TOS are consistent. However, the copyright regime in the UK is inconsistent with the TOS.

Jane's 'vidding' and sharing of the new video clip on YouTube and Facebook are enabled solely by the technological features on both platforms.124 Where there is copyright infringement and the use is enabled on the relevant platform, the copyright regime and the technological features are inconsistent. While the US and Australian copyright regimes are hence inconsistent with the technological features, the UK copyright regime is consistent.

The TOS and the technological features are inconsistent. Jane's use, unlicensed under the YouTube Terms and the Facebook Statement, is enabled solely by the technological features on YouTube.


#### **Table 5.8 Consistency table 8**

I. Cheryl's use of 'stills' from Jane's video clip as thumbnail images on her website

The earlier discussion suggested that Cheryl's use has infringed copyright laws in the UK and in Australia, but not in the US.125 Further, her use is not licensed under the YouTube Terms and possibly not under the TOS of a standard website.126 Where there is copyright infringement (ie, under the *UK Copyright Act* and the *Australian Copyright Act*) and Cheryl has breached the relevant TOS, the respective copyright regime and the TOS are consistent. However, the copyright regime in the US is inconsistent with the TOS.

Cheryl's use is not enabled solely by the technological features on both platforms.127 Where there is copyright infringement and Cheryl's use is not enabled on the relevant platform, the copyright regime and the technological features are consistent. While the UK and Australian copyright regimes are hence consistent with the technological features, the US copyright regime is inconsistent.

The TOS and the technological features are consistent. Cheryl's use, unlicensed under the YouTube Terms (and probably also unlicensed under the TOS of a standard website), is not enabled by the technological features on YouTube or on such a website.


#### **Table 5.9 Consistency table 9**

J. Other users' partial use of Jane's collage to create their own, then sharing the same on Pinterest, Facebook and Twitter

Based on the earlier discussion, these uses have infringed copyright laws in Australia, but not in the US and the UK.128 Further, such uses are not licensed under each of the Pinterest Terms, the Facebook Statement and the Twitter Terms.129 Where there is copyright infringement (ie, under the *Australian Copyright Act*) and these users have breached the relevant TOS, the copyright regime and the TOS are consistent. However, each of the copyright regimes in the US and the UK is inconsistent with the TOS.

The users have to use external tools, such as the 'save image as' function on their web browsers and other image editing tools, to download and modify Jane's collage to create versions of their own.130 Where there is copyright infringement and such uses require external tools on the relevant platforms, the copyright regime and the technological features are consistent. While the Australian copyright regime is hence consistent with the technological features, the US and the UK copyright regimes are inconsistent.

The TOS and the technological features are consistent. The uses which are not licensed under the TOS of all three platforms are similarly not enabled by the technological features on the platforms.


**Table 5.10 Consistency table 10**

K. Editor Jasper's use of Jane's collage on the cover page of his magazine

The earlier discussion suggested that Jasper's use has infringed copyright laws in the US, the UK and Australia.131 Further, his use is not licensed under the Pinterest Terms, the Facebook Statement or the Twitter Terms, as the case may be.132 Because there is copyright infringement in all three jurisdictions, where the relevant TOS are also breached, the copyright regime is consistent with the TOS in each of the three instances.

Jasper has to use external tools, such as the 'save image as' function on his web browser, if he downloaded the collage from the Pinterest and Twitter platforms. Even if Jasper downloaded the collage from the Facebook platform, he will have to rely on external tools to edit Jane's collage for use on his magazine cover.133 Where there is copyright infringement and Jasper's use requires the adoption of external tools, the copyright regimes and the technological features are consistent. There are hence consistencies across all three jurisdictions.

The TOS and the technological features are consistent. Jasper's use, which is not permitted under the TOS of all three platforms, is also not enabled by their technological features.


#### **Table 5.11 Consistency table 11**

#### L. Concluding observations

The following table, with reference to the tables above, summarises the number of instances – out of a total of eleven content-generative activities selected for consideration from the case study – where the regulatory signals given by each of copyright laws, the TOS and the technological features to users are assessed to be consistent, vis-à-vis the other regulatory factor concerned. While each shaded circle is counted as one instance of consistency, each unshaded circle is counted as one instance of inconsistency.

To explain further, in relation to the US copyright regime and the TOS, seven out of a total of eleven of the instances examined are consistent.134 This figure is indicated in the relevant cell under the second main column below, as are the relevant figures in the respective rows.

Given that the consistency of copyright laws with each of the TOS and the technological features is considered across all three jurisdictions, the number of instances where the regulatory factors are consistent (ie, in relation to copyright laws vis-à-vis the TOS, and copyright laws vis-à-vis


**Table 5.12 Summary of consistency tables**

i. The actual figures are rounded up or down to one decimal place.

the technological features) has to be divided by the figure of three. This will ensure that the figure provided in the first two rows of the last main column is the equivalent of the figure provided in the last row (ie, where the pair of regulatory factors evaluated comprises the TOS and the technological features).

Each of the figures given in this last main column is given over a total of eleven content-generative activities. As such, the average number of instances where a pair of regulatory factors acts inconsistently can be easily calculated. For example, if there is an average of 5.3 instances where the factors act consistently (ie, in evaluating copyright laws and the TOS), there is a corresponding average of 5.7 instances (out of eleven) where these factors act inconsistently.

I observe that the regulatory factors in the three pairs are inconsistent in just slightly under half out of the total number of instances considered,135 and argue that this exposes users to mixed signals regarding the activities that are legitimate on social media.

### III. Regulation of content-generative behaviours by copyright laws

In this section I question whether copyright laws can effectively regulate content-generative behaviours of social media users by relating the earlier analyses to the observations made under scenario four. I note that:

(i) Because perceptions have a bigger impact on users' compliance with such laws than an awareness of copyright laws does, and *further*, as the technological features shape users' perceptions of copyright laws, these features could play a more important role either than copyright laws per se or the TOS in securing the compliance of users with these laws.136 Such compliance is therefore achieved when users are unable to undertake potentially copyright-infringing activities on social media as the features are self-executing.

This is consistent with the general observation drawn from scenario four that the technological features are a significant contributor of mixed signals on social media platforms.137 These signals confuse users regarding the activities that are legitimate on such platforms under copyright laws.

(ii) Users, including social media users, are inclined towards claiming to know more about copyright laws than they actually do. Their objective levels of awareness of copyright laws – in particular, how these laws apply to their specific activities – is typically low.138

In this respect Chapter Two has demonstrated,139 through its discussion of the application of copyright subsistence and infringement rules and the challenges posed to the content-generative activities on social media, why it is not possible for regular social media users to have the level of understanding of copyright laws required to know how they apply to the activities such users undertake. Moreover, conflict of laws issues have to be resolved to ascertain which laws apply to questions of subsistence and infringement of copyright,140 in a copyright-related dispute around content on social media. Further, scenario one141 has shown that the application of the copyright laws of the three selected jurisdictions – the US, the UK and Australia – to the same content-generative activities under the case study can lead to differing conclusions. This book cannot determine with finality, even with reference to the relevant legislation and cases under scenario one, how the copyright subsistence and infringement issues will be resolved. In particular, where copyright infringement is found at first appearance on the facts given, there remains great uncertainty as to whether any exceptions to copyright laws apply.142 The purpose of scenario one is instead to provide a general overview of the interaction between copyright laws and the generation of content in the social media context.

(iii) The TOS and the technological features foster the conflicting expectations in 'copyright holders' and users,143 as discussed in Part II. The provisions of the TOS which are incompatible with the copyright regime have the potential to encourage 'copyright holders' to overreach their rights under copyright laws, as they concurrently mislead social media users to think that their uses of copyright-protected content are licensed. In this case, the expectation of the 'copyright holder' contradicts that of a user on social media. In respect of the technological features, the notice and takedown mechanisms and the Content Id system available to copyright holders facilitate 'copyright holders' in requesting the removal of content – and incidentally in permitting them to make claims that go beyond their legal entitlements. On the other hand, different technological features that make it easy for users to generate content serve to reinforce their expectation that digital content available on social media is free.144 A user's expectation that content is free varies from the actual practices of a 'copyright holder' on social media. These expectations, whether fostered by the TOS, the technological features or in some other way, will be generally discussed as conflicting expectations.

This is consistent with the general observation drawn from scenario four that users are at the receiving end of mixed signals as to the contentgenerative activities that are legitimate on social media platforms under copyright laws.

In light of the above, copyright laws appear to play a limited role in regulating the content-generative activities of users and in securing their compliance. This is due to the environment of mixed signals and conflicting expectations in which users on social media platforms are immersed. Such a situation can have the effect of pulling users in different directions regarding whether they should engage in specific activities on these platforms. In this respect the technological features on social media platforms make a significant contribution to the mixed signals to which users are subject, and henceforth to influencing content-generative behaviours.

### IV. Conclusion

In this chapter I have highlighted the findings from prior empirical studies that can illuminate the perceptions and awareness of copyright laws in users of social media platforms. I have analysed these findings together with the arguments made in Chapters Two, Three and Four. Pursuant to these analyses I have argued that the low levels of awareness of copyright laws in people generally are amplified in social media users. This is due to the combined effect of the inadequacy of copyright rules to which social media users can relate and the complex rules that copyright laws comprise – as well as the need to address the multiple issues set out in Chapter Two145 to ascertain whether content-generative activities are indeed copyright infringing.

With scenario four, I have shown that the regulating factors of copyright laws, the TOS and the technological features apply inconsistently – in relation to slightly under half of the eleven content-generative activities considered from the case study. Users are exposed to mixed signals regarding the activities that are legitimate on social media platforms.

In relation to the TOS's effect on users' awareness of copyright laws, I have argued that the TOS foster conflicting expectations in 'copyright holders' and users. While 'copyright holders' expect that the content they generate on social media is copyright protected, users may expect that their content-generative activities are licensed under the TOS. The understandings of copyright laws that the TOS appear to embody – in particular as a result of the latter's potential compatibilities with the copyright regime set out in Chapter Three146 – give rise to these expectations that contribute to users' poor awareness of copyright laws. Similarly, in relation to the influence of the technological features on users' perceptions of copyright laws, I have argued further that the technological features foster conflicting expectations in both 'copyright holders' and users. On the one hand, the availability of the notice and takedown mechanisms and filtering systems (such as the Content Id system on YouTube) facilitate 'copyright holders' in making their requests for content to be removed – whether under the *DMCA* or otherwise – and concurrently allow them to make claims that go beyond their proper entitlements under copyright laws. On the other hand, the encouragement of content-generative activities (ie, the creation, modification and dissemination of content) by the technological features identified in Chapter Four to be incompatible with the copyright regime,147 as well as the overall 'generativity' of social media, reinforce the expectation of users that digital content is free and can be readily used.

With reference to the concept of 'nudging'148 that I have adapted for the purpose of this book, many users appear to assume that the contentgenerative activities they are 'nudged' to undertake on social media platforms are legitimate and will not attract liabilities under copyright laws. These expectations of users vary from the actual practices of 'copyright holders'. Such conflicting expectations can contribute to users' negative perceptions of copyright laws – that copyright laws are illegitimate for being unreasonable, outdated and irrelevant. At the same time, the significant influence of the technological features on users' compliance with copyright laws when they generate content is reinforced by the fact that their impact is analogised to the application of bright-line rules, in contrast to the impact of the principles-based TOS (which also requires one to refer back to copyright laws) and the complex, rules-based copyright laws.

In view of the environment of mixed signals and conflicting expectations in which users on social media platforms are immersed, I question if it is unfair for users to be widely exposed to the risks of copyright infringement for the content-generative activities they undertake on these platforms. Further, given the significance of the technological features in influencing content-generative behaviours and their overall 'nudging' and encouragement of users to engage in the creation, modification and dissemination of content, the vulnerability of users to the risks of copyright infringement for the activities they engage in on social media needs to be given more consideration by legislators and policy makers. Users should not be expected to behave counter-intuitively (ie, against the direction of the 'nudges') on social media platforms to avoid the risks of copyright infringement altogether, while those platforms that wield great influence over their users' content-generative behaviours are afforded the shelter of safe harbour legislation.149

### **Notes**


citizens and permanent residents. Of the respondents, 54.9 per cent viewed downloading from unauthorised sources as a form of theft in 2014 (as compared to 77.8 per cent of the respondents in 2010); and 49.2 per cent of the respondents viewed unauthorised file sharing as a form of theft in 2014 (as compared to 77.5 per cent of the respondents in 2010). See Intellectual Property Office of Singapore, *Annex A: IP Perception Survey Summary Report 2014* <https://www.ipos.gov.sg/Portals/0/Press%20Release/Annex%20A%20Perception% 20Survey.pdf>.


Tanner's actual understanding of how copyright laws are applied to the posting of the combined images in question fell short of her proclaimed general understanding of those laws. See also *Walmsley* 2014 WL 2194626, where the employee of the defendant, Miss Roberts, is an example of a user who has a low level of awareness of copyright laws, and of how these laws apply to her activities.


## Conclusion

In this book I have set out to provide an analysis as to how the contentgenerative behaviours of social media users are regulated from a copyright perspective. For this purpose I compare copyright laws with other regulatory factors such as the TOS (ie, terms of service) and the technological features on social media platforms. I have selected five social media platforms – namely Facebook, Pinterest, YouTube, Twitter and Wikipedia – for survey in the book. Each of these platforms falls under one of the four (out of six) categories of social media under Kaplan and Haenlein's classification system, being respectively social networking sites, content communities, blogs and collaborative projects.1 These platforms serve as a good sample to survey how users' compliance with copyright laws can be influenced by the user policies and design choices of the platforms. In this respect, the case study detailing the content-generative activities of Jane Doe and other users on the selected social media platforms acts as an anchor for the discussions on how copyright laws, the TOS and the technological features of social media platforms regulate the content-generative behaviours of users.

I have considered the application of copyright laws to various uses on social media, and how this application is aligned with the TOS and the technological features of the selected social media platforms. In particular, I have examined the copyright laws of the US, the UK and Australia. I have argued that the effectiveness of copyright laws as a regulator of content-generative behaviours is compromised by the uncertainties in the application of copyright laws and variations between those laws in different jurisdictions, as well as by inconsistencies between the application of either of the regulatory factors or the copyright laws.

I recognise that it is important to expand our understanding of how social media platforms can alter – through their TOS and technological features – the effectiveness of the regulation of contentgenerative behaviours by copyright laws. This is especially so as internet users now spend more time on social media platforms than before.2 Many users are also observed to engage regularly in behaviours that potentially fall within the scope of copyright infringement.3 Despite the ubiquity of the use of social media platforms, there is a dearth of rigorous consideration given to how specific social media platforms affect the role laws, including copyright laws, play in securing compliance from their users. Moreover, social media platforms have their unique characteristics and business models that deserve separate analyses.

The conclusions drawn throughout this book highlight the need to address the vulnerability of social media users, widely exposed to the risks of copyright infringement in the content-generative activities that they are 'nudged'4 to undertake on social media platforms. In particular, in Chapter Two, I demonstrated why it is not possible for any regular social media user to have the level of understanding of copyright laws required to assess the legitimacy of the content-generative activities he or she undertakes, through the application of copyright laws to these activities. In Chapter Three I noted that the TOS are aligned with the copyright regimes to some extent, and argued further that the TOS and the relevant copyright regime reinforce one another when they are in alignment. I also argued that three areas5 give rise to potential incompatibilities between the TOS and the copyright regimes, and so compromise the effectiveness of copyright laws in regulating the content-generative behaviours of users.

In Chapter Four I argued that the 'generativity'6 of social media platforms, in part due to their integration of technological features that encourage the creation, modification and dissemination of content, can increase the possibilities for copyright infringement on such platforms. These features can therefore be incompatible with the copyright regimes. On the other hand, I noted that the technological features that constrain content-generative activities limit the opportunities for users to interact with content and can reduce the risks of copyright infringement by users of the platforms. I argued further that although these features are aligned with the copyright regimes, their influence is limited since the constraints experienced by users can easily be overcome with external tools – on balance, the platforms encourage content-generative activities more than they constrain them. In addition, I elaborated on how some of the features that constrain content-generative activities reflect copyright considerations. Finally, in Chapter Five, I argued that users are exposed to mixed signals and conflicting expectations on social media platforms regarding the content-generative activities legitimate on these platforms.

### I. Fairness from a user's perspective

A recurring theme throughout the chapters of this book has been the unequal positions of social media platforms and users relative to one another. In particular, while these platforms seek alignment with the copyright regime to secure the availability of the safe harbour provision for themselves,7 users do not have the same privilege. I have argued that more attention needs to be paid to the vulnerability of users who are exposed to the risks of copyright infringement for the content-generative activities they undertake regularly on these platforms.8 This is in view of the significance of the technological features in encouraging content-generative behaviours, as well as the environment of mixed signals and conflicting expectations in which users on social media platforms are immersed. Users are pulled in different directions by the examined regulatory factors on social media, with regard to the content-generative activities in which they engage. Further, I have argued that the conflicting expectations adversely shape users' perceptions and awareness of copyright laws in this environment, therefore compromising their effectiveness in securing compliance from users who generate content. These users may not take copyright laws seriously.9

Given that social media platforms wield great influence over the content-generative behaviours of their users, it is undesirable that users are widely exposed to the risks of copyright infringement for their everyday engagement in content-generative activities on these platforms. Together with the uncertainties users face in ascertaining how complex copyright rules (including exceptions to such rules) can apply to their content-generative activities on social media, these considerations give rise to the question of whether it is unfair for users to be exposed to the risks of copyright infringement for these activities. This is especially so since most of the social media platforms10 are operated around advertiser-supported business models made viable by reason of the content generated by users of such platforms. Users receive the shorter end of the (copyright) stick: they face the risks of copyright infringement for the content-generative activities which they are 'nudged' to undertake, and which they believe to be legitimate on the platforms. The question as to whether this is unfair, and how it will be measured, are issues requiring further exploration outside the scope of the book.

### II. Why regulating social media matters

This book contributes to the debate in the following ways. Firstly, the research conducted demonstrates the influence the selected five social media platforms could have over users' content-generative behaviours, by virtue of their TOS and technological features. In this respect the book is the first account using the approach it has adopted (ie, in comparing copyright laws with other regulatory factors on social media) to assess how specific social media platforms affect the ability of copyright laws to regulate content-generative behaviours effectively. Secondly, the question of unfairness to users that the book raises in view of its conclusions on the influence of social media can furnish an alternative angle for legislators and policy makers to consider when they reform existing copyright legislation. This will go beyond the usual reference made to balancing the rights of copyright holders and users. A distinction between these two groups is less meaningful on social media, where a copyright holder of any content on social media could also be a user of the content shared by others.

Therefore the specific course of copyright reform to which the book points may lie in expressly providing for the occurrence of content generation on social media as a factor to be considered,11 *or* as a specific purpose exempt from copyright infringement (as the case may be), under the respective copyright statute.12 In that event the provision has to be compliant with international obligations under the respective treaties to which the US, the UK and Australia are parties, including the three-step test.13 In particular, relevant considerations will include the specificity of the provision and whether content-generative activities are seen to constitute a narrow category of cases,14 as well as whether the content generated through these activities – leading to direct or indirect commercial benefits15 for the authors of such content on social media – is seen to conflict with normal exploitations of the relevant copyright works.16

Copyright reform in this direction will benefit social media users more in jurisdictions such as Australia, in comparison with the US17 and the UK. As scenario one has shown, seven out of eleven content-generative activities will not infringe the *US Copyright Act*, pursuant to the application of the fair use doctrine.18 Thus, because of the availability of the doctrine in the US, users are arguably less exposed to the risks of copyright infringement than they are in Australia. Under the *UK Copyright Act*, five out of eleven content-generative activities are probably exempt as fair dealings, by virtue of the application of the new exception for the purpose of caricature, parody or pastiche.19 In contrast, under the *Australian Copyright Act*, none of the content-generative activities is exempt as a fair dealing.20

If the adoption of existing solutions is preferred, jurisdictions such as Australia could consider providing an exception for fair use – this may reduce the exposure of social media users to the risks of copyright infringement.21 Although the fair use exception in the US has been criticised for its open-ended nature, it has been applied by courts extensively over decades.22 To this end, the Australian Law Reform Commission has recommended in its report on copyright reform that the fair use exception be introduced as an extension of Australia's existing fair dealing exceptions – as, among other things, the flexible fair use exception would be more responsive to technological changes.23 This recommendation has been provisionally endorsed by the Productivity Commission.

If fair use is not enacted, an alternative will be to introduce a more specific exception to copyright infringement for UGC (ie, user-generated content) which allows a user to create new content using publicly available copyright works under specific conditions, as in Canada.24 Although there are some uncertainties brought forth by its qualitative conditions (ie, whether it is *reasonable* in the circumstances to mention the source of a copyright work, and whether a user had *reasonable grounds* to believe that the existing copyright work, or copy of it, does not infringe copyright),25 such an exception can have the effect of exempting more contentgenerative activities on social media from copyright infringement than is the case in its absence.26 Notwithstanding its shortcomings, the exception can provide social media users with the greater peace of mind they need to engage in content-generative activities, unlike the fact-based analyses leading to uncertain applications in many fair dealing scenarios.27

In the UK, while no specific exception for UGC has been introduced, the status of UGC was considered in two recent reviews of copyright laws in the UK, both of which recommended the adoption in the UK of new fair dealing exceptions.28 Following subsequent consultations, copyright law reforms were implemented in 2014, including the introduction of new fair dealing exceptions for the purposes of quotation, as well as for caricature, parody or pastiche.29 As illustrated under scenario one, some content-generative activities are probably exempt from copyright infringement by virtue of the latter exception (ie, for caricature, parody or pastiche),30 and in certain limited circumstances might also, or alternatively, benefit from the former (ie, for quotation).31

The UK reforms suggest that another alternative to fair use is to expand the fair dealing exception for the purpose of parody or satire in Australia32 to include pastiche, as in the case of the UK.33 Arguably, further consideration should also be given to designing an exception for the purpose of quotation which is along the lines of the limited form adopted in the UK.34 Indeed, a quotation exception appears to be mandated under article 10 of the *Berne Convention*. 35 The introduction of an exception for the purpose of quotation has been explored in Australia.36 Such an exception, I note, will only exempt social media uses in the limited circumstances that the conditions for its availability are satisfied. This may be difficult for the conditions which relate to the compatibility of the relevant use with fair practice,37 and to the justification of the extent of the use by its purpose.38

While I have highlighted earlier that the condition of availability to the public is not likely to bar an exemption,39 the last condition (ie, the need to attribute the source and the author)40 might well in many instances. Nonetheless, my view is that these conditions, including that for attribution in a quotation exception, should remain, since they seemingly reflect fair practices and preferences. As mentioned earlier, social media users like to identify with the content they create.41 Although I have outlined some approaches to copyright reform that can reduce the risks of copyright infringement to which social media users are exposed, the specific direction copyright reform (whether in Australia or in any other jurisdiction) should take and its implications on content-generative activities on social media fall beyond the scope of this book. Instead, this could be the subject of future research.

Yet another possible solution to address any potential unfairness of exposing social media users to copyright infringement for their contentgenerative activities is to acknowledge more explicitly the regulatory role of social media platforms. This provides a basis upon which one can call upon these platforms to play their part in ensuring the continuing relevance of laws such as copyright in regulating content-generative behaviours – and additionally in safeguarding users' rights in this digital space. In line with what Elkin-Koren has argued, granting online intermediaries that benefit from the distribution of copyright-protected content immunity from infringement under safe harbour provisions is no longer sufficient to ensure the free flow of information.42 Because of the risks users face, including the risk of partial enforcement by the online intermediaries themselves,43 online intermediaries should be subject to duties owed to users to honour the rights of users – among other things, to share and access content.44

The first step in this direction will be for social media platforms to take more care in ensuring that the regulatory factors that they design and with which users interact – such as the TOS and the technological features – convey a more consistent message to their users as to the activities that are legitimate on these platforms.45 Given that such platforms are observed to have a huge influence over the content-generative behaviours of their users, any solution arrived at should see them shoulder a fairer burden of the risks resulting from the business models from which they have selected and benefited.46 Social media platforms can continue working towards making their TOS more comprehensible for social media users. This may, however, be of limited effect, in view of the fact that many users do not read the TOS.47 Among the five platforms studied in this book, YouTube makes the most resources on copyright laws available to its users.48 These resources provide useful information to assist discerning users with navigating the risks of copyright infringement on the YouTube platform.49

Another way is to rely on the influence of the technological features as a regulatory factor, and to use these features to prompt users to consider specific copyright issues at suitable junctures when they create, modify or disseminate content on social media.50 For instance, when a user downloads the video clips of other users on YouTube and creates a new video clip using snippets from each of the downloaded video clips with the video editing tool available to him or her, prompts could be given to the user along with his or her creation of the new video clip, ensuring that the user makes an informed decision when generating content. Beyond prompting users to take copyright issues into account, technological features can potentially be designed to eliminate user autonomy altogether, such that the decision to engage in content-generative activities which can infringe copyright laws no longer lies with the user in question.51

The copyright policies incorporating copyright laws such as the *DMCA* can thus be reinforced, in different ways, through the use of smart technologies embodied within the technological features available to users. Adopting such solutions reflects the understanding that users are vulnerable to influence from social media platforms. It also acknowledges that copyright laws may have to be backed by the technological features on these platforms in order to continue to be an effective regulator of the content-generative behaviours of social media users. The specific steps the platforms should take fall beyond the scope of this book, and again could be the subject of future research.

In this sense the book provides cause to reflect on the potential widespread illegality of the content-generative activities in which social media users engage with regularity. It also points to examining the underlying core policy behind the regulation of online intermediaries, such as social media platforms. Ideally the book will stimulate more critical reflections on how laws (including laws other than copyright) should develop to take into account the influence of social media platforms on user behaviours through reform that gives users more leeway for the activities in which they engage. This could give rise to interesting insights that will benefit law reformers and scholars interested in legal issues on social media; it will also appeal to a broader audience (including users of social media platforms) interested in the application of laws to their activities on these platforms. These reflections are crucial – not just to secure the survival of laws such as copyright, but also to ensure the continuing attraction of social media platforms as enabling avenues for creative play and free expression.

### **Notes**


### Bibliography

### I. Articles/Books/Reports

#### A. Articles


Gaver, William W., 'Technology Affordances' (1991), *CHI'91 Conference Proceedings* 79


Wauters, Ellen, Eva Lievens and Peggy Valcke, 'Towards a Better Protection of Social Media Users: A Legal Perspective on the Terms of Use of Social Networking Sites' (2014) *International Journal of Law and Information Technology* 1


Zittrain, Jonathan, 'The Generative Internet' (2006) 119 *Harvard Law Review* 1974

#### B. Books


Bently, Lionel and Brad Sherman, *Intellectual Property Law* (Oxford University Press, 3rd ed., 2009) Briggs, Asa and Peter Burke, *A Social History of the Media* (Polity Press, 3rd ed., 2009)

Black, Julia, *Rules and Regulators* (Oxford University Press, 1997)

Black, Julia, 'The Rise, Fall and Fate of Principles-based Regulation' in Kern Alexander and Niamh Moloney (eds), *Law Reform and Financial Markets* (Edward Elgar Publishing, Cheltenham, UK, 2011) 3

Brown, Lesley (ed.), *The New Shorter Oxford English Dictionary* (Clarendon Press, 1993)

Brownsword, Roger, 'So What Does the World Need Now?' in Roger Brownsword and Karen Yeung (eds), *Regulating Technologies* (Hart Publishing, 2008) 23

Brownsword, Roger, and Karen Yeung (eds), *Regulating Technologies* (Hart Publishing, 2008)

Brownsword, Roger, and Karen Yeung, 'Tools, Targets and Thematics' in Roger Brownsword and Karen Yeung (eds), *Regulating Technologies* (Hart Publishing, 2008) 3

Burgess, Jean, 'YouTube and the Formalization of Amateur Media' in Dan Hunter, Ramon Lobato, Megan Richardson and Julian Thomas (eds), *Amateur Media: Social, Cultural and Legal Perspectives* (Routledge, 2013) 51

Bygrave, Lee A., *Internet Governance by Contract* (Oxford University Press, 2015)


DeNardis, Laura, *Protocol Politics: The Globalization of Internet Governance* (The MIT Press, 2009) DeNardis, Laura, *The Global War for Internet Governance* (Yale University Press, 2014)

Dutton, William (ed.), *Oxford Handbook of Internet Studies* (Oxford University Press, 2013)


Goffman, Erving, *The Presentation of Self in Everyday Life* (Doubleday Anchor Books, 1959)


Hetcher, Steven A., *Norms in a Wired World* (Cambridge University Press, 2004)

Hildebrandt, Mireille, 'A Vision of Ambient Law' in Roger Brownsword and Karen Yeung (eds), *Regulating Technologies* (Hart Publishing, 2008) 175


Rawls, John, *A Theory of Justice* (Oxford University Press, 1997)


#### C. Reports

Copyright Law Revision Report No. 94 – 1476 (Mr Kastenmeier) (1976, House of Representatives) Directorate for Public Governance and Territorial Development, 'OECD Reference Checklist for Regulatory Decision Making' (Report, Organisation for Economic Co-operation and Development, 1995)


#### D. Others

American Law Institute, *Intellectual Property: Principles Governing Jurisdiction, Choice of Law, and Judgments in Transnational Disputes* (2007)

American Law Institute, *Restatement (Second) of Conflict of Laws* (1998)

### II. Cases

#### A. US cases

*A&M Records v Napster*, 239 F 3d 1004 (9th Cir, 2001) *Acuff-Rose Music Inc v Jostens Inc,* 155 F 3d 140 (2nd Cir, 1998) *Agence France Presse v Morel*, 10 Civ 02730 *(*USDC SDNY, 14 January 2013*) Agence France Presse v Morel,* 10 Civ 02730 (USDC SDNY, 21 May 2013) *Agence France Presse v Morel*, 10 Civ 02730 (USDC SDNY, 22 November 2013) *Agence France Presse v Morel*, 10 Civ 02730 (USDC SDNY, 13 August 2014) *Alfred Bell & Co v Catalda Fine Arts Inc*, 191 F 2d 99 (2nd Cir, 1951) *American Dental Association v Delta Dental Plans Association*, 126 F 3d 977 (7th Cir, 1997) *American Express Travel Related Servs Co Inc v Assih*, 893 NYS 2d 438 (Civ Ct, Richmond County, 2009) *Angel Fraley et al v Facebook Inc et al* (ND Cal, No 11- CV-01726, 4 April 2011) *Assessment Technologies v Wiredata*, 350 F 3d 640 (7th Cir, 2003) *Atari Inc v North American Philips Consumer Electronics Corp*, 672 F 2d 607 (7th Cir, 1982) *Atari Games v Oman*, 979 F 2d 242 (DC Cir, 1992) *Baker v Selden*, 101 US 99 (1879) *Baltimore Orioles v Major League Baseball Players*, 805 F 2d 663 (7th Cir, 1986) *Bill Graham Archives v Dorling Kindersley Ltd*, 448 F 3d 605 (2nd Cir, 2006) *Blanch v Koons*, 467 F 3d 244 (2nd Cir, 2006) *BMG Rights Management (US) LLC v Cox Communications Inc et al*, 2015 WL 7756130 (ED Va, 1 December 2015) *Board of Managers of Soho International Arts Condominimum v City of New York*, US Dist LEXIS 10221 (SDNY, 2003) *Bowers v Baystate Techs Inc*, 320 F 3d 1317 (Fed Cir, 2003)

*BUC International Corp v International Yacht Council Ltd*, 489 F 3d 1129 (11th Cir, 2007) *Burr v Beers*, 24 NY 178 (1861) *Campbell v Acuff-Rose Music Inc*, 510 US 569 (1994) *Capitol Records Inc v MP3 Tunes LLC*, 2014 WL 4851719 (USDC SDNY, 22 August 2011) *Cariou v Prince*, 714 F 3d 694 (2nd Cir, 2013) *Carnival Cruise Lines Inc v Shute*, 499 US 585 (1991) *Carter v Helmsley-Spear,* 71 F 3d 77 (2nd Cir, 1995) *Castle Rock Entertainment Inc v Carol Publishing Group Inc*, 150 F 3d 132 (2nd Cir, 1998) *CCC Information Services Inc v Maclean Hunter Market Reports Inc*, 44 F 3d 61 (2nd Cir, 1994), *cert denied*, 116 S Ct 72 (1995) *Childress v Taylor*, 945 F 2d 500 (2nd Cir, 1991) *Christopher Boffoli v Twitter Inc*, Case 12-01534 (USDC Wash, 10 September 2012) *Chuck Blore & Don Richman Inc v 20/20 Advertising Inc*, 674 F Supp 671 (D Minn, 1987) *Columbia Pictures Industries Inc v Redd Horne Inc*, 749 F 2d 154 (3rd Cir, 1984) *Computer Associates International v Altai Inc*, 982 F 2d 693 (2nd Cir, 1992) *Concrete Machinery Co Inc v Classic Lawn Ornaments Inc*, 843 F 2d 600 (1st Cir, 1988) *Continental Casualty Co v Beardsley,* 253 F. 2d 702 (2nd Cir), *cert denied* 358 US 816 (1958) *Country Kids 'N' City Slicks Inc v Sheen*, 77 F 3d 1280 (10th Cir, 1996) *Davis v Blige*, 505 F 3d 90 (2nd Cir, 2007), *cert denied*, 129 S. Ct. 117 (2008) *Dellar v Samuel Goldwyn Inc*, 104 F 2d 661 (2nd Cir, 1939) *Donald Graham v Richard Prince et al*, 15 Civ 10160 (USDC SDNY, 30 December 2015) *Eden Toys v Florelee Undergarment Co*, 697 F 2d 27 (2nd Cir, 1982) *Equal Employment Opportunity Commission v Arabian American Oil Co*, 499 US 244 (26 March 1991) *Eldred v Ashcroft*, 537 US 186 (2003) *Ellison v Robertson*, 357 F 3d 1072 (9th Cir, 2004) *Elsmere Music Inc v National Broadcasting Co*, 623 F 2d 252 (2nd Cir, 1980) *Entertainment Research Group Inc v Genesis Creative Group Inc*, 122 F 3d 1211 (9th Cir, 1997) *Erickson v Trinity Theatre Inc*, 13 F 3d 1061 (7th Cir, 1994) *Ets-Hokin v Skyy Spirits Inc*, 225 F 3d 1068 (9th Cir, 2000) *Feist Publications Inc v Rural Telephone Service Company*, 499 US 340 (1991) *Gaiman v McFarlane,* 360 F 3d 644 (7th Cir, 2004) *Gershwin Publishing Corp v Columbia Artists Management Inc*, 443 F 2d 1159 (2nd Cir, 1971) *Golan v Holder,* 132 S Ct 873 (2012) *Gracen v Bradford Exchange*, 698 F 2d 300 (7th Cir, 1983) *Grosso v Miramax Film Corp*, 383 F 3d 965 (9th Cir, 2004) *Harper & Row Publishers Inc v Nation Enterprises*, 471 US 539 (1985) *Itar-Tass Russian News Agency v Russian Kurier In*c, 153 F 3d 82 (2nd Cir, 1998) *Jean v Bug Music Inc*, 2002 WL 287786 (SDNY, 27 February 2002) *Kelly v Arriba Soft Corporation*, 336 F 3d 811 (9th Cir, 2003) *Kiobel v Royal Dutch Petroleum*, 133 S Ct 1695 (2013) *Kregos v Associated Press*, 937 F 2d 700 (2nd Cir, 1991) *Kristen Pierson v Twitter Inc*, Case 15-5669 (USDC CD Cal, 27 July 2015) *L Batlin & Son Inc v Synder*, 536 F 2d 486 (2nd Cir, 1976) *Lawrence v Fox*, 20 NY 268 (1859) *Lawrence Lessig v Liberation Music Pty Ltd*, Case 1:13-cv-12028-NMG (USDC Mass, 22 August 2013) *Lenz v Universal Music Corporation*, 572 F Supp 2d 1150 (USDC ND Cal, 20 August 2008) *Lewis Galoob Toys Inc v Nintendo of America Inc*, 964 F 2d 965 (9th Cir, 1992) *Lone Ranger Television Inc v Program Radio Corp*, 740 F 2d 718 (9th Cir, 1984) *Mattel Inc v Walking Mountain Productions*, 353 F 3d 792 (9th Cir, 2003) *Mavrix Photographs LLC v Livejournal Inc*, 2014 WL 6450094, SD Cal (19 September 2014) *Meshwerks Inc v Toyato Motor Sales USA Inc*, 528 F 3d 1258 (10th Cir, 2008), *cert denied,* 129 S Ct 1006 (2009) *Metro-Goldwyn-Mayer-Studios Inc v Grokster Ltd*, 380 F 3d 1154 (9th Cir, 2004) *Mirage Editions Inc v Albuquerque A.R.T. Company*, 856 F 2d 1341 (9th Cir, 1988) *Mirandah Tan and Hassan Miah v John Doe*, Civ No 14-cv-2663 (ALC) (USDC SDNY, filed 5 May 2014) *Morissey v Proctor & Gamble Co*, 379 F 2d 675 (1st Cir, 1967)

*Murphy v Millennium Radio Group LLC*, 650 F 3d 295 (3rd Cir, 2011)


#### B. UK cases

*British South Africa Co v Companhia de Mocambique* [1893] AC 602 *CBS Songs Ltd v Amstrad Consumer Electronics Plc* [1988] 1 AC 1013 *Confetti Records (a firm) v Warner Music UK Ltd (trading as East West Records)* [2003] EWJC 1274 *Designers Guild Ltd v Russell Williams (Textiles) Ltd* [2000] UKHL 58 *Donoghue v Allied Newspapers Limited* (1938) Ch 106 *Ernest Turner Electrical Instruments Ltd v Performing Right Society Ltd* [1943] Ch 167 *Express Newspapers plc v News (UK) Ltd* [1990] 1 WLR 1320 *Exxon Corp. v. Exxon Insurance Consultants International Ltd* [1982] Ch 119 *Falcon v Famous Players Film Company* [1926] 2 KB 474 *Francis Day and Hunter v Twentieth Century Fox Film Corporation* [1940] AC 112 *Hawkes & Son (London) Ltd v Paramount Films Service Ltd* [1934] 1 Ch 593 *Hollinrake v Truswell* (1894) 3 Ch D 420 *Hubbard v Vosper* [1972] 2 QB 84 at 94 *Hyperion Records v Sawkins* [2005] 1 WLR 3281 *Interlego v Tyco* [1989] AC 217

*Jennings v Stephens* [1936] Ch. 469 *John Walmsley v Education Limited T/A Oise* 2014 WL 2194626 *Jones v London Borough of Tower Hamlets* [2001] RPC (14) 379 *Kenrick v Lawrence* (1890) 25 QBD 99 *Kirk v Fleming* [1928–35] Mac CC 44 *Ladbroke (Football) Ltd v William Hill (Football) Ltd* [1964] 1 All ER 465 *Lucasfilm v Ainsworth* [2011] UKSC 39 *Norowzian v Arks Ltd (No 2)* [2000] FSR 363 *Pasterfield v Denham* [1999] FSR 168 *Performing Right Society Ltd v Harlequin Record Shops Ltd* [1979] 2 All ER 828 *Spiliada Maritime Corporation v Consulex Ltd* [1987] 1 AC 460 *TCN Channel Nine Pty Ltd v Network Ten Pty Ltd* (2002) 55 IPR 112 *The Newspaper Licensing Agency and others v Meltwater Holding BV and others* [2011] EWCA Civ 890 *Tidy v Trustees of the Natural History Museum* (1995) 39 IPR 501 *Twentieth Century Fox Film Corporation v Newzbin Limited* [2010] EWHC 608 *University of London Press Ltd v University Tutorial Press Ltd* [1916] 2 Ch 601 *Walter v Lane* [1900] AC 539

### C. Australian cases

*Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (in liq)* (2007) 71 IPR 437 *Australian Olympic Committee Inc v The Big Fights Inc* (1999) 46 IPR 53 *Autodesk Inc v Dyason (No 1)* (1992) 173 CLR 330 *Avel Pty Ltd v Multicoin Amusements Pty Ltd* (1990) 171 CLR 88 *CBD Records Australia Ltd v Gross* (1989) 15 IPR 385 (Federal Court of Australia) *Copyright Owners Reproduction Society v EMI (Australia) Pty Ltd* [1958] HCA 54 *Data Access v Powerflex* [1999] HCA 49 *De Garis v Neville Jefress Pidler* (1990) 37 FCR 99 *Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd* [2008] FCAFC 197 *EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd* [2011] FCAFC 47 *Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd* [2010] 88 IPR 11 (Federal Court of Australia) *Ice TV Pty Limited v Nine Network Australia Pty Ltd* [2009] HCA 14 *Neilson v Overseas Projects Corporation of Victoria Ltd* [2005] HCA 54 *Network Ten Pty Ltd v TCN Channel Nine Pty Ltd* [2004] HCA 14 *Puttick v Fletcher Challenge Forests Ltd* [2006] VSC 370 *Rank Film Production Ltd v Colin S Dodds* (1983) 2 IPE 113 *Roadshow Films v iiNet Limited* [2012] 286 ALR 466 *Seafolly Pty Ltd v Madden (No 2)* [2013] FCA 46 *State of Victoria v Pacific Technologies (Australia) Pty* Ltd (No 2) [2009] FCA 737 *Telstra Corporation v Australasian Performing Right Association* (1997) 38 IPR 294 *Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd* [2002] FCAFC 112 *Telstra Corporation Ltd v Phone Directories Company Pty Ltd* (2010) 194 FCR 142 *Telstra Corp Ltd v Royal & Sun Alliance Insurance Ltd* (2003) 57 IPR 453 *Trident General Insurance Co Ltd v McNiece Bros Pty Ltd* [1988] 165 CLR 107 *Universal Music Australia Pty Limited v Sharman License Holdings Limited* [2005] FCA 1242 *Victoria Park Racing and Recreation Grounds Co. Ltd v Taylor* (1937) 58 CLR 479 *Voth v Manildra Flour Mills Pty Ltd* [1990] HCA 55 *Zeccolo v Universal Studios Inc* (1982) 46 ALR 189 (Full Federal Court of Australia)

### D. Other cases

*Gestevision Telecinco SA and another v YouTube LLC*, Case 11 / 2014 (Madrid Court of Appeal (Civil Division), 14 January 2014)


*Tod's SpA v Heyraud SA*, Case C-28/04, 2005 ECR I-05781

### III. Legislation

A. US legislation

*Berne Convention Implementation Act*, 17 USC § 101 (1988) *Code of Federal Regulations*, 37 CFR § 202.1 (1991) *Copyright Act*, 17 USC (1976) §§ 101–810 *Digital Millennium Copyright Act*, 17 USC § 512 (1998) *United States Constitution*, art I § 8, cl 8 (1787) *Visual Artists Rights Act*, 17 USC § 106A (1990)

#### B. UK legislation

*Contracts (Rights of Third Parties) Act 1999* (UK) *Copyright, Designs and Patents Act 1988* (UK) c 48 *Statute of Anne 1709* (UK) c 19, as repealed by the *Copyright Act 1842 The Copyright (Application to Other Countries) Order 1993* (UK) SI 1993/942 *The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014* (UK) SI 2014/2361

#### C. Australian legislation

*Copyright Act 1968* (Cth) *Copyright (International Protection) Regulations 1969* (Cth) *Insurance Contracts Act 1984* (Cth) *Property Law Act 1969* (WA) *Property Law Act 1974* (Qld) *Property Law Act 2000* (NT) *Telecommunications Act 1997* (Cth)

#### D. Other legislation

*Copyright Act*, RSC 1985, c C-42

### IV. Treaties/Supranational materials

*Agreement on Trade-Related Aspects of Intellectual Property Rights*, signed 15 April 1994 (entered into force 1 January 1996)

*Berne Convention for the Protection of Literary and Artistic Works*, signed 9 September 1886 (entered into force 5 December 1886)

*International Covenant on Economic, Social and Cultural Rights*, 993 UNTS 3 (16 December 1966) *Regulation (EC) No 1215/2012 of 12 December 2012 on Jurisdiction and the Recognition and* 

*Enforcement of Judgments in Civil and Commercial Matters* [20 December 2012] OJ L 351/1


*Universal Declaration of Human Rights*, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948)

*WIPO Copyright Treaty*, signed 20 December 1996 (entered into force 6 March 2002)

*WIPO Performances and Phonograms Treaty*, signed 20 December (1996) (entered into force 20 May 2002)

### V. Others


ClipConverter.cc, *Free Online Media Recorder* <http://www.clipconverter.cc/>


Facebook, *Government Requests Report* <https://govtrequests.facebook.com/>


Pinterest, *Transparency Report <*https://help.pinterest.com/en/articles/transparency-report> Pinterest, *Terms of Service* <https://about.pinterest.com/en/terms-service>

Pinterest Blog, *Pin a Video!* (22 May 2013) <https://blog.pinterest.com/en/pin-video>


Twitch, *Twitch* <http://www.twitch.tv/>


Twitter, *Help Center: Copyright policy* <https://support.twitter.com/articles/15795#>

Twitter, *Help Center: I'm missing Tweets* <https://support.twitter.com/articles/277671#>

Twitter, *Help Center: New user FAQs* <https://support.twitter.com/articles/13920#>

Twitter, *Help Center: Posting a Tweet* <http://support.twitter.com/articles/15367-posting-a-tweet> Twitter, *Privacy Policy* (27 January 2016) <https://twitter.com/privacy>


Twitter, *Tweets in broadcast* <https://about.twitter.com/company/broadcast#>

Twitter, *Twitter* <https://www.twitter.com>

Twitter Blogs, *Twitter's New Terms of Service* <https://blog.twitter.com/2009/ twitters-new-terms-service>

UGC Principles, *Principles for User Generated Content Services* <http://www.ugcprinciples.com/> United States Copyright Office, *eCO Registration System* <http://copyright.gov/eco/>


Wikimedia Foundation, *Contact us* <https://wikimediafoundation.org/wiki/Contact\_us>


Wikimedia Foundation, *WikimediaAnnounce-L: Announcements and Reports of the Wikimedia Movement* <https://lists.wikimedia.org/mailman/listinfo/wikimediaannounce-l>

Wikipedia, *Blog* <https://en.wikipedia.org/wiki/Blog>

Wikipedia, *Copyright Alert System* <https://en.wikipedia.org/wiki/Copyright\_Alert\_System>


Wikipedia, *Help: Books* <https://en.wikipedia.org/wiki/Help:Books>

Wikipedia, *Help: Editing* <https://en.wikipedia.org/wiki/Help:Editing>

Wikipedia, *Help: File Page* <https://en.wikipedia.org/wiki/Help:File\_page>


# Appendix 1 Screenshots of the technological features

### I. Technological features

*A. Technological features that encourage content-generative activities*

### *1. Creation*


**Image 1** Facebook


**Image 2** Facebook

**Image 3** Pinterest

**Image 4** Pinterest

**Image 5** YouTube

**Image 7** YouTube


**Image 8** YouTube

**Image 9** YouTube

**Image 10** Twitter


**Image 11** Twitter

### *2. Modification*

**Image 13** Facebook

**Image 14** Facebook

**Image 15** Pinterest

**Image 16** Pinterest

**Image 17** Pinterest


**Image 18** YouTube


**Image 20** Twitter

**Image 21** Wikipedia

#### *3. Dissemination*

**Image 22** Facebook

**Image 23** Facebook

**Image 24** Pinterest

**Image 25** YouTube

**Image 26** Twitter

**Image 27** Wikipedia

### *B. Technological features that constrain content-generative activities*

*1. Limiting the modification of content*


**Image 28** Facebook


**Image 29** Pinterest


**Image 31** YouTube

**Image 32** Twitter

### *2. Limiting the opportunities to engage in further content-generative activities*


**Image 33** Twitter



**Image 35** Twitter

*3. Allowing for requests to remove content*

**Image 36** Facebook

**Image 37** Facebook

**Image 38** Facebook

**Image 39** Facebook


**Image 42** Pinterest


**Image 43** Pinterest


**Image 44** YouTube


**Image 45** YouTube



**Image 47** YouTube

**Image 48** Twitter

**Image 50** Twitter

**Image 52** Twitter

### II. Scenario three: the influence of the technological features

*A. Jane's use of the music video clip on YouTube as her morning alarm*

**Image 53** YouTube

*F. Jane's use of the same collage in her blog post on WordPress*


*G. Zee's contribution to Wikipedia on 'income inequality' using what Jane has written*

#### **Image 55** Wikipedia

Note: Screenshots taken on the Facebook, Pinterest, YouTube, Twitter and Wikipedia platforms respectively, as of 7 June 2017.

### Index

Page numbers in bold indicate tables and appendix

account disabling for repeated infringements 118 adaptations of works right in UK and Australia 44, 72 adapted content, copyright infringement 19 advertiser-supported business models 4, 200 adoption by social media platforms 173 Agence France Presse (AFP) use of Morel's works 120–21 *Agence France Presse v Morel (Morel)* case 52 'amateur creative digital content' (ACDC) reference to UGC 18 American Law Institute (ALI Principles) 58 architectural works 33 'artistic work', recording on any medium 39 arts organisations' views on copyright 166 audio clip, 'swapping tool' by YouTube 139 'audiovisual work' 33 films or cinematographic films 77–8 *Australian Copyright Act* 53, 156, 178, 180, 183 infringement 73, 74 moral rights 49 performance of work, rights 47 removal or altering of electronic rights information 51 right of adaptation 44 same goal as the UK 32 Australian court *Voth v Manildra Flour Mills Pty Ltd* 124 Australian fair dealing exceptions 55 Australian Law Reform Commission 55 fair use exception 202 'author' definition in Australia photograph under *Australian Copyright Act* 37 authorship designation dilemmas 38 automatic enforcement through filtering 156–7 banal words, phrases, language of widespread usage barrier to copyright protection 118 behaviour influence from social media 3 *Berne Convention for the Protection of Literary and Artistic Works* 32, 41, 57, 125 principle of national treatment 41 'bespoke' alarm call on Jane's mobile phone 21 breach of YouTube terms use of 'stills' from video clip 115 broadcasting of work 46

'broadcast' in UK, transmission on internet 33 *Brussels I Regulation*, potential violation of 124 business models, advertiser-supported 4 of social media platforms 5

California, law of the state 125 celebrity blogger Small-Steps 'tweet' about newborn baby 22 Cheryl's use of 'stills' from Jane's video clip as thumbnail images on her website 184 choice of law Restatement (Second) of Conflict of Laws in the US (*Second Restatement*) 122–3 choice of social media platforms 20 collaborative projects 1, 39 blogs, content communities 20 collage creation from photographs taken by others, of sculptures, etc. 54 collage of newborn babies, by Jane Doe access on Pinterest platform and shared 152–53 forming with aid of photo-editing on mobile phone 22–3 'Remedy for an Aging Population' shared on Pinterest, pin-board 23 collage sharing in blog post on WordPress infringement in Australia 76 commentary of Evangeline's posted Facebook creating her own 21, 112–13 comments to video clips on YouTube 119 commercial use of Jane's collage 80 communication rights and social media 47 complex rules of copyright laws 190 computer science 7 concept of authorship 34 Conflict of Laws in Intellectual Property *ClIP Principles* 56–8, 126–7, 188 consensus with copyright laws deterrence of future file-sharing activities 168–9 consent of copyholder need for communication to 'new public' 47 Consistency tables 1 to 12 **178**–**87** content communities 1, 9, **27** content creation 3 'status update' (Facebook) 139 content dissemination social rather than financial motivations 4

content-generative activities 20, 44, 47 across social media **25** behaviour of users 198 collaborative, blogs, content communities social networking sites 28 copyright holding 9, 170 copyright laws applications 20 creation, modification, and dissemination of content 190 encouraged by technological features 176 of Jane and other users 24, 127, 198 licensed under TOS 190 'nudged' to undertake 197 on social media 1, 6–7, 32, 46, 79–80, 138 technological features, impact of 153–4 content-generative behaviours by technological features regulation by copyright laws 5–8, 187 reinforcement of expectation of users Content Id software, scanning video clips 146 available to copyright holders 189 by YouTube 175–6 filtering technologies 156–7 content in social media programmes prejudicial to reputation of copyright holder 175 protected by copyright or not 79–80, 170 published works in Australia 40 removal sometimes erroneous 157 rights to make available to public 54 shared on Facebook, Pinterest, Twitter WordPress and YouTube published works in UK 40 on Twitter, speedy deletion 38–9 textual, image, audio and visual forms 33 content on Wikipedia platform need for source or copyright tag 144 'works of joint authorship' 37 contracting parties, to *Berne Convention* 41 *Contracts (Rights of Third Parties) Act 1999*, UK 120 contractual choice of governing law, support 122 contributor copyright investigation, user request Wikipedia 146 'copies' term, communicable work 42 copyholders' claim for remedies in US non-registration 171 copyrightable content on social media 121 *Copyright Act 1968 (Cth) Australian Copyright Act* 32 *Copyright Act of 1976* in US 32 *Copyright and Rights in Performances (Personal Copies for Private Use)* 55, 71 *Copyright (Application to Other Countries) 41* copyright considerations 138 *Copyright (International Protection)* Regulations 1969 in Australia 41 copyright laws, application 59–72 *Copyright, Patents and Designs Act 1988 UK Copyright Act* 32 'Copyright Center' (YouTube), self-help options 105 copyright disputes relating to content 107–8 'copyright holder' copyright protection not always the case 173–4

guidance questions 58 posting copyright concerns 105 right to perform publicly 45, 119, 174 overreaching rights 188–9 users, conflicting expectations 190 copyright in Australia works to any form of storage, sound, films 39 copyright infringement 5, 183, **183** activities 169, 188 behaviours 199 exceptions to 31 possibilities 154 under *Australian Copyright Act* 182 copyright issues, US, UK , Australia 59–**70** copyright laws 4, 5, 79–80 application in US, UK, Australia 7, 198 comparison with other regulatory factors on social media 201 content-generative behaviours of social media users 24 differing conclusion, US, UK, Australia 188–9 perception and awareness 165–77 regulation by 21 reform 6 terms of service, technological features uncertain legitimacy 57 copyright legislation, 5, 125 'copyright management information' 50–51 copyright policies 102–105, 117–18, 127 copyright laws *Digital Millennium Copyright Act* 204 copyright policy, key terms **109**–**11** copyright protection 32, 119–20, 121, 127–8, 175 from copyright holders to YouTube 146 granting, foreseeable barrier 118 licence may not cover uses by third parties 173 material that is original from author, including copies in US 34, 39 none in UK and Australia, for song titles, advertisements, short, headlines 35 ownership of content by users, not always qualifying 173 *proviso de minimis* (no trifling matters) in UK 35 result of skill, labour, experience 35 in UK and Australia copyright regimes 79–80 potential incompatibilities 118–27, 137–8 relationship with 116–27, 153–8 copyright-related disputes adjudication of, in UK and Australia 126 copyright rules applicable to content-generative activities variable jurisdictions 171 absence and complexity of 171–2 inadequacy 189–90 copyright subsistence 76–7, 80 copyright systems, mature protection of expressions, not ideas, facts 33 copyright technological features **178**–**87** copyright violation contact party direct, complete DMCA compliant form 146

creation and sharing of new video clip 'vidding' on YouTube 77–8 'creative content' definition, Facebook, Pinterest, Twitter, YouTube, Tumblr, Flickr 20 creativity, ambiguity of 34 cyberlaw and cyberspace 3, 8 damages awards 53 *de minimis* use (too trivial) 35, 42 derivative works, no infringement 72, 73 under *US Copyright Act* 43 digital audio transmission 46 digital communications expansion cyberspace, inherently borderless 56 digital content 32, 167 *Digital Millennium Copyright Act* 50, 98, 102 compliant online forms 173 mechanism available to copyright holders 105 in copyright policies counter-notice 157 frequency of, social media platforms 117 notice and takedown mechanism 127, 155–6, 172 in respect of shared content 175 notifying of copyright infringement 155–6 process not readily available on Wikipedia 146 safe harbour provision, exemption from liability for monetary relief 128–9 YouTube 104 digital or machine-readable format 42 dissemination 141–2 extended reach of platforms 3–4 infringement of rights in UK 46 distortion, mutilation, modification prejudicial to author 48 *distribution* and *display* rights 75 DMCA *see Digital Millennium Copyright Act doctrine of merger*, *scènes à faire* US, Goldstein and Hugenholtz 33 doctrine of privity 120 domestic laws, mandatory 128 double intent standards, in US 51 dramatic works 33 drop-down menu, option selection report to Facebook, on offensive content for removal 144–5 editor Jasper's use of Jane's collage on cover page of his magazine 80, 116, 185–6 Electronic Frontier Foundation (EFF) *Lawrence Lessig v Liberation Music Pty Ltd* complaint against 157 electronic rights management information 51 electronic transmission 46 e-mails, bilateral messages 18 'embed post' option, Facebook 141 'encouragement of learning' 32 enforcement of copyright clips of song Lisztomania 157–8 European Max Planck Group 58 Evangeline's commentary, copyright protected 73

exemption from liability for monetary relief 128–9 expectation of users that digital content is free 176 expressions not copyright protected 33–4 external application, use of, on mobile device to play video clip as alarm 178 external tools use, 'save image' copyright infringement 185 on web browser 180 extraterritoriality 125 Facebook copyright policy, user warnings 103–4 dissemination, multiple ways 141 laws of state of California 107 modification 139–40 no breach in collage sharing 113 non-exclusive, transferable, royalty-free worldwide license 99 rights of one as original author 22 Statement of Rights and Responsibilities 99 technological features **230**–**31**, **234**, **239–40, 242, 247–50** terms and technological features copyright protection, availability 22 transparency report, number of government requests recorded 117 user content upload for sharing, image video clip 137 fair dealing exceptions new in UK 202 untested by litigation 56 UK and Australia, more prescriptive than in US 55, 56 fair dealing exception expansion for parody or satire in Australia including pastiche 31, 203 for purpose of private study, quotation, caricature, parody, pastiche 55 for quotation, limited use in exempting social media uses 56 fairness from user's perspective 200–201 fair use analysis in US, comment or criticism of work 54 fair dealing, copyright exceptions 80 doctrine in US 31, 71, 77, 202 false attribution, in UK and Australia 49 file-sharing activities 167–8 filtering, a form of technological control 146, 156–7 final clip from different video clips availability on YouTube 23 financial incentive for content share increasing 5 fixation requirement 119 fixation standards 38–40 *forum non conveniens* and pleading of foreign law 124 *Spiliada Maritime Corporation v Consulex Ltd (Spiliada)* 124 free digital content expectation 189 freedom of expression expansion through social media 2

freelance writer Olga Lexell Twitter's deletion of 'tweets' 154 Friend, Rupert (Homeland') **247** Getty Images in US 120–21 Gimp, Photoshop, image modifying 151 re-arranging texts 140 governance, privatised by social media 2 governing law and jurisdiction 98, 107–8, **109–11** governing law and jurisdiction, choice of California 121–7 governing law and jurisdiction clauses 126–7 Haitian earthquake, photographs by photojournalist, Danel Morel 52 'Harvey Balls' in tables 177–8 Homeland's Photos Facebook **248** human-centre authorship concept 171 human factors, on social media 2, 7 hypothetical user, Jane Doe 8 day in the life of 20–30 identification of authors on social media 36 of original generator of content 143 of specific right infringed 171 illegality, widespread of content-generative activities 205 image editing tools for collage creation 180 images, comments on 139 image sharing 2 income equality commentary on Facebook transfer to 'Timeline' 21 'income inequality' comment on Wikipedia 23 income inequality comment on Facebook Jane Doe, colleague, Zee, adds page to Wikipedia, no attribution to Jane 23 indemnification and liability of platforms 98–9 limiting of liability 105–7, **109**–**11** of platforms for losses incurred 128–9 individual images from 'audiovisual works' 78 influences on social media, 'nudges', 7 'nudged', 3 infringement copyright, content-generative activity 9 copyright in Australia, not US or UK 180 fair use and fair dealing exceptions 53–6 remedies 52–3 reproduction of whole 43 scope of protection 41–7 Instagram, modified images on 36 'intellectual property' 166 Intellectual Property Office of Singapore survey results 168 intellectual property rights 11, 159 in the US Constitution promotion of progress of science, useful arts 31–2 international obligations, compliance with US, UK and Australia, three-step test 201

internet's power, connecting people 153 internet users 1, 7, 199

Jane Doe collage, other users' partial use, sharing 79–80, 151, **184** rights against Zee and Cheryl under copyright laws 24 infringement of copyright laws in Australia 181 use of collage in blog post on WordPress 182 use of earlier commentary on Facebook Evangeline's commentary to create own 73–4 Facebook copyright infringement in UK, Australia, not US 150, 179 use of multiple photographs of newborn babies collage creation on Pinterest 74–6, 151 use of music video-clip on YouTube, morning alarm 71 copyright infringement, UK, Australia 178 usage licensed under the YouTube terms 178 video clip, taken by Cheryl (stranger) to display with different story 23 Jasper etc., external tools 186 Jasper's use of Jane's collage on cover page of magazine 153 joint authorship 37–8 'joint work' definition 37, 74

Kaplan and Haenlein classification system 1 knowing removal or alteration of electronic rights management information 51

lack of skill or knowledge, negative sense 18 laws and copyright laws 8, 31 difficulty of finding applicable law 79–80 legal action against Twitter, California 2 legislation restrictions 5 Lessig, Lawrence, renowned theorist on cyberspace 158 *lex loci protectionis* 57, 125 liability disclaiming 105–107 Liberation Music copyright notice settlement of case, fair use, fair dealing agreement, US and Australia 157–8 liberties, civil, individual challenges by social media platforms 2 licensed use under Pinterest terms 180 licensing of photographs 120–21 linking users through commonalities 3 literary, dramatic, musical, artistic work *Australian Copyright Act* 42 literary works 33

magazine editor, Jasper consideration of using newborns' collage for cover page 24 manual selection of text then 'copy and paste' 21 'material form' definition any form of storage, adaptation 42 micropayments licensing system 4 mixed signals 187–9 modification 3, 49 of content 139–41 limiting of 143–4

monetary relief limit from social media platforms 172 moral rights attribution, infringement 51 authors' assertion 48 infringement of others' rights 175 infringement on social media 47–52 of integrity to a work 159 right of attribution 77 US, UK and Australia 171, 175 specified under *VARA* 49, 50 *Morel* case 120–21 musical works 33 music video clip, Jane's use on YouTube not in breach of YouTube terms 21, 112 narrow definition of visual art under *VARA* 49 national borders and content sharing 5 negative perceptions of copyright laws 190–91 newborn babies collage spread on social media, recognition of babies by mothers 24 notice and takedown mechanisms 189, 190 'nudging' concept 159 concept-generative activities 190 online content, free 167–8 online intermediaries 203–4 Organisation for Economic Cooperation and Development (OECD) definition of 'user-generated content' 18 original author, lack of acknowledgement 77 originality and authorship requirements 31 originality for copyright protection 118–19, 126, 170 UK and Australia 36 for literary, dramatic, musical works 35 ownership and licensing of content 99, **109**–**11** 'ownership' conferment 126, 127–8 'ownership' vesting on user of a post on Facebook, etc. 118 partial use of Jane's collage by other users on Pinterest, Facebook, Twitter 115–16 Pew Research Center, US 2012 survey 167 photograph, digitally vandalised infringement of author's rights 49 photograph of a sculpture in public place exception from infringement 42 photograph of private sculpture pinning on Pinterest 46 photographs newborn babies, infringement in Australia 74–5 on pin-boards of Pinterest users 22 pictorial, graphic and sculptural works 33, 74 'pin' option on Pinterest, video clip sharing 1 79 Pinterest **1**, **98**, **231**–**2**, **236**–**7**, **240**, **243–4**, **250**–**51** liability disclaimer for contents shared 106 Pinterest Terms 99 Pinterest account, 'Video' on Jane's pin-board 21

Pinterest copyright policy termination of account of repeated infringement 104 Pinterest platform content communities 21 content dissemination by 'pinning' 141 mash-ups of photographs 18 'pin' content, original generator of content, possible 143 Pinterest Terms 182 informal resolution first, or American Arbitration Association rules 107 Jane's use licensed 180 licence scope limited 102 user retention of all rights posted 100 Pinterest user 'pin' other's image on own pinboard 140 platform users, vulnerability, copyright infringement 128–9 political transformation on social media 2 potential incompatibilities TOS and copyright regimes 127 precautionary measures in acquisitions of licences from users 119–20 Prince, Richard, sale of artworks 2 of Instagram images 36, 43–4 privity, doctrine of 120, 128 producers and consumers of content on social media, importance of rights knowledge 32 profits award, unawareness of infringement 53 provisions of TOS incompatible with copyright regime 188–9 'publication' in UK availability through electronic retrieval system 40 public display of work, open to public 45–7 public's interest in accessing copyrightprotected works 54 quotation exception article 10 of *Berne Convention* 203 registration, pre-requisite to copyright infringement actions 52 registration systems for copyright protection unnecessary in UK and Australia 52 regulation by copyright laws terms of service and technological features 177–87 of the US, UK and Australia 31 *Regulation (EC) No 593/2008 of the European Parliament*, Rome I Regulation 123 regulation of content-generative behaviour copyright laws 187–9 regulation of cyberspace or cyberlaw 8 regulation of social media, why it matters 201–5 regulatory factors **178**–**87** consistent messages, social media platforms 204 regulatory signals, consistency evaluation 177 relevant copy standards 31–58 remedies available to copyholder 52 'Remedy for an Aging Population' shared on Facebook 'Timeline' 23 removal of content under DMCA 117–18

restoration on YouTube no response from copyright holder 157 're-tweeting', no change to original 'tweet' on *Twitter* platform 143–4 rights of attribution 48, 50 bundle of copyholder 74–5 constraining 2 of copyright holder, *US Copyright Act* 41 of integrity 155 of Jasper, on photographs 24 management provisions 51 to perform, show or play work *prepare* derivative works, etc. 78 of producer of 'Making Good' 24 to public 45, 46 of reproduction 41–2, 71 infringement 73–4 or lending, or sale *US Copyright Act* 44 risk avoidance of copyright litigation 176 risks of copyright infringement 199 *Rome I Regulation* potential violation 123–5 rule, characterisation of three main 'elements' or characteristics 170 rules, precision, complexity, clarity three types of rules 170 safe harbour legislation 191 DMCA mechanism in copyright policies 117–18 'save image' function on web browser 153 sculpture, privately owned infringement if photograph on Pinterest 42 secondary liability for copyright infringement 118 *Second Restatement* 122–3 self-educating nature of technological features 176 self-expression, desire for 19 'send' option, to selected friends on Facebook 141 shaded and unshaded circles consistency and inconsistency 186 shaded circle representing consistency 178 'share' option, Facebook 141 original user still identifiable 143 'Share' option tab under friend, Evangeline's commentary 'copy and paste' 21 sharing an image, 'pinning' on Pinterest 139 sharing of 'status update' on Facebook 44 social incentives 19 social media characteristics participating, conversation, connectedness community, openness 3 social media, definition 17–20 social media for self-representation 2 social media platforms 1, 128–9 collaborative projects 9 influencing compliance with copyright laws 24 producers and consumers of content 3 proliferation, technological enablement 5 regulatory role acknowledgement 203 solicitous reminders to caution users 118 studies governing law as laws of state headquarters 112

terms of service **109**–**11**

unencumbered licence to use owned content 172–3 and users, unequal position 200 social media users active participants 38 adaptation of newborn babies collage, create own versions for further dissemination 24 difficulty of understanding 79–80 social networking sites 1, 9, 20 'social' technologies 3 sole author of new video clip, Jane 78 sound recordings and cinematic films 33, 42 copyright if first published in UK 40 status, desire for 19 'status update' 180 choosing audience 141 photograph of blue skies on sunny day 34 shared by Facebook user 32, 49, 119 statutory damages, grave concern 54 'stills', Cheryl's use of, from Jane's video clip as thumbnail images on website 78–9, 115, 152 subject matter types protected by copyright laws 31 subsistence: authorship 36–8 subsistence: fixation, recording reduction to material form 38–41 subsistence: originality 34–6 summary creation, modification, dissemination, limiting modification, filtering contents **147**–**9** summary of application of copyright laws in US, UK and Australia, to content-generative activities of social users **59**–**70** summary of key terms content-generative activities of users **109**–**11** summary of technological features influencing content-generative activities of users five selected social media **147**–**9** technical infringement regularity of copyright 6–7 technological facilities, 'affordances' 3 technological factors of social media platforms 1 technological features 10, 21, 138–46, **183** content-generative activities 139, 142–6, 153–4, 167 constrained by 199 impact of 6, 8, 79–80 screenshots 138 limiting modification of content 175 no express rules, bright-line rules 176 regulatory factor 204 screenshots **230**–**57** Facebook **230**–**31**, **234**, **239**–**40**, **242**, **247**–**50** Pinterest **231**–**2**, **236**–**7**, **240**, **243**–**4**, **248**–**9** YouTube **232–3**, **237**, **241**, **244**, **252–3**, **256**

Twitter **234**, **238**, **241**, **245**–**6**, **253–5** Wikipedia **234**, **239, 241, 257** of social media platforms

and application of copyright laws 158–9

requesting removal of content 142–4 users' perceptions of copyright laws 174–7 technological 'nudge' 138 technological 'nudging' 191 television show episode, copied by user 19 television episode uploading on YouTube right to perform publicly 46 termination policy for repeat infringers DMCA safe harbour provision 127 terms of service of media platforms 8, 10, 21, 81 alignment with copyright regimes 98, 127, 199 application 108–16 comparative regimes in US, UK, Australia 79 copyright policies adopted 96 governing law and jurisdiction clauses 107–8 imposition on third parties 120–21 licence granting 102 technological features **165**, **181**, **182**, **183** users' awareness of copyright laws 172–4 third party users 120–21 sharing on social media 127–8 'Timeline' 141 *Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS)* 32 principle of national treatment 57 'transformative-ness' of a use 54 translation of literary work 73 transnational disputes infringement of another country's copyright 57 transnational intellectual property disputes American Law Institute (ALI Principles) 57–8 tripartite relationship, access by broad community 4 'tweet', reasons not to protect 35–6 'tweet' of newborn baby photograph on blog post 22 'tweets' on Twitter 32, 119 Twitter **234, 238, 241**, **245**–**6**, **253**–**5** copyright policy, respecter of intellectual property rights 104–5, 121 feed checking by Jane 22 liability disclaimer for contents shared 106 removal of plagiarised jokes 'reply' function, responding to 'tweet' 140 reporting of 'tweets' 145 'tweet' embedding 142 'tweet' sharing, image or video clip 139 Twitter Terms 99 governing law, state of California 108 no breach in collage sharing 113 worldwide, non-exclusive, royalty-free license 101 two-way conversations 3 type of social media **26** ubiquitous infringement, rules dealing with 58 UK and Australia fair dealing exceptions 74 *UK Copyright Act* 53, 156, 178 'copying', storing by electronic means copy making 42 extension to a finite group of works and subject matter 33

infringement 74 receipt of visual sounds or images 46 right to attribution 48 works *recorded* in writing or *otherwise* 39 UK goal for copyright, *Statute of Anne 1709* 32 *UK Regulation (EU) No 1215/2012* on jurisdiction, (Brussels I Regulation) 124 unfairness to users 201 uniform resource locators (URLS) 117 unilateral interests of social media users 96 unitary product, content pages on Wikipedia 37 US case law, US copyright legislation 125 *US Copyright Act* 36, 37, 183, **183** infringement 74 registration of content 53 video clip entirety 'audiovisual work', lyrics literary, music, musical work 71 *US Copyright Office Regulations* examples of materials not protected by copyright 33 'use' definition modification, translation creation of derivative works 113 use of individual images infringement of right to reproduce 79 user base expansion, content availability 5 'user', copyright protection not always the case 173 user-generated content (UGC) 3, 18, 202 definition, various forms of content of users 17 new or adapted content from creative effort 19 and 'social media' 9 user resident in UK or Australia 126 US-registered entities directing to users in Europe 124 US Supreme Court copyright exists to promote creative expression 32 Viacom International Inc. US-based 157 video clip copyright 77 Jane's use of, infringement of right of reproduction 71 prohibition from posting content, breach of YouTube and Facebook Terms 114–15 public, private or unlisted 142 removal, YouTube, select flag icon under video clip 145 sharing, on YouTube, Facebook 23, 142 UK not fair dealing 71 YouTube **183** video-downloading on YouTube 204 video editing tool 139 YouTube, 'upload' function to share 152 views incorporated in Evangeline's commentary 'copy and paste', editing within text box 150–51 violation of moral rights 155 *Visual Arts Rights Act (VARA)* in US. art images, photographs, authors' rights 48

voluntary licensing by users 121 vulnerability of social media users 199–200 web 2.0, 'architecture of participation' 17 web forms, accessibility on four platforms 155 website of Cheryl 152 Wikimedia Foundation 105, 117 all content to be licensed 99 copyright policy 105 disclaimer of responsibility for acts of third parties 106–7 Wikipedia **1**, **96**, **234**, **239, 257** articles not accepted 144 collaborative projects 21, 102 technical coordination mechanisms 140–41 technical information about the file 144 Wikipedia platform image or audio clip 139, 144 notification of copyright infringement 155–6 Wikipedia Terms 99, 100–101 alternative dispute resolution mechanisms in San Francisco County 108 licensing requirements 100–101 WordPress 151, **256** account, Jane Doe sharing collage 21, 23 collage use in blog post, Terms of Service (TOS) 114, 182

YouGov report 2014, UK digital content should be free (children and young adults) 167 YouGov report on file-sharing devices 176 young people's self expression on Internet Lisztomania, clips of song 157 YouTube **1**, **21**, **98**, **232**–**3**, **237**, **241, 244**, **252**–**3**, **256** Content Id system 157–8 copyright policy, warnings on video clips 104 liability disclaimer for contents shared 106 provision of social plug-ins 151 video editing tool 152 YouTube platform 'share' tab for comment on video clip 140, 143 'upload' option 139 users, rights to re-use a user's content 102 video clips , social plug-ins, 'embed' option, e-mail option 142 YouTube Terms 99 laws of California 108 user retention of all ownership rights 100–101 Zee's contribution to Wikipedia

on 'income equality', using Jane's writing 76–7, 114, 151–2, 182–3 Wikipedia **257**

'This book makes an important contribution to the field of social media and copyright. It tackles the real issue of how social media is designed to encourage users to engage in generative practices, in a sense effectively "seducing" users into practices that involve misuse or infringement of copyright, whilst simultaneously normalising such practices.'

**– Melissa de Zwart, Dean of Law, Adelaide Law School**

Regulating

**Corinne Tan**

Regulating

Content

Media

**of Service and** 

**Technological** 

**Features**

**Copyright, Terms** 

on Social

Content

 on

Social

Media

**Corinne Tan**

'This timely and accessible book examines the regulation of contentgenerative activities across five popular social media platforms.... Its indepth, critical and comparative analysis of the platforms' growing efforts to align terms of service and technological features with copyright law should be of great interest to anyone studying the interplay of law and new media.'

### **– Peter K. Yu, Director of the Center for Law and Intellectual Property, Texas A&M University**

### **How are users influenced by social media platforms when they generate content, and does this influence affect users' compliance with copyright laws?**

These are pressing questions in today's internet age, and *Regulating Content on Social Media* answers them by analysing how the behaviours of social media users are regulated from a copyright perspective. Corinne Tan, an internet governance specialist, compares copyright laws on selected social media platforms, namely Facebook, Pinterest, YouTube, Twitter and Wikipedia, with other regulatory factors such as the terms of service and the technological features of each platform. This comparison enables her to explore how each platform affects the role copyright laws play in securing compliance from their users. Through a case study detailing the contentgenerative activities undertaken by a hypothetical user named Jane Doe, as well as drawing from empirical studies, the book argues that – in spite of copyright's purported regulation of certain behaviours – users are 'nudged' by the social media platforms themselves to behave in ways that may be inconsistent with copyright laws.

**Corinne Tan** holds a PhD and LLM from the Melbourne Law School, as well as a LLB from the National University of Singapore. She is an internet governance, intellectual property and media law scholar and has published widely in international law journals.

Cover design: Jason Anscomb