User-Generated Content & Social Media – Staying On The Right Side Of Intellectual Property (IP) Law

Over the past year, video-sharing social networking service, TikTok, has grown exponentially, now boasting more than one billion active monthly users. That increase in users is not unique to TikTok, with increases reported across all major social media platforms since the start of the pandemic. In addition, figures show that we are spending more time on social media than ever before.

As more people turn to social media, whether to while away the pandemic, interact with their friends or try and launch a new career as an influencer, it is important to consider the potential IP issues that may arise.

How could using social media infringe IP rights?

Broadly speaking, copyright is the IP right that is most likely to cause a problem on social media. This is because copyright protects photos, music, videos and, in some circumstances, written text (and so all the things that we love to upload and share on social media).

There are two issues here:

1. How the platform will treat user-generated content; and
2. What the rules are regarding the use of third-party content by the user.

User-generated content

What a content creator can expect regarding their own content is generally set out in the terms and conditions of the platform in question. Not always immediately apparent (particularly if you sign up using an app, rather than a desktop computer), a review of those terms will explain to the content creator how their work will be treated by the platform.

Generally speaking, in uploading content, you’ll be granting a licence to the platform to host and reproduce the content that you’ve created. This is to be expected, as the whole point of these platforms is to display them so that your posts are seen.

What happens if you post content on social media that infringes someone else’s IP?

When it comes to third-party content, platforms have policies and processes that can be followed, if it is believed that copyright has been infringed in some way.

Usually, that process requires that a complaint be submitted, or for a request to be made that the infringing content is removed. The platform will then allow the alleged infringer an opportunity to respond before determining whether there has been an infringement of copyright (or any other rights) or not.

Depending on the circumstances, a complaint may be rejected or the content may be removed. Sometimes, the account holder who uploaded the infringing content will have their account suspended, either temporarily or permanently. To make use of the complaint’s procedure, the rights holder will need to be able to demonstrate that there has been an infringement of their copyright (or alternatively, that the post violates the platform’s policies in some other way).

What do social media platforms consider to constitute copyright infringement?

Social media platforms do not tend to publish the detail of what is or is not a copyright infringement, although often their terms and conditions and policies will talk about the principles in very, very general terms.

While perhaps not that helpful to a content creator who wants to know whether their copyright has been infringed (or whether they are infringing someone else’s rights), this is to be expected. Social media platforms are accessible in many jurisdictions and so the laws on copyright (from whether it subsists, to whether it has been infringed or whether there is a defence available) will be myriad.

Added to the complexities that can arise in any given case (for example, under UK law, copyright will only be infringed if a ‘substantial part’ of the work has been reproduced – a particularly thorny question when considering how that applies to GIFs and memes), it would be unrealistic to expect platforms to provide detailed information as to whether copyright exists and if so, whether it has been infringed.

Could social media platforms do more to prevent content from being infringed?

As mentioned previously, social media platforms do have policies and procedures in place to address these issues already, but the role is generally reactive, dealing with complaints as and when received. A creator could, therefore, report a post one day and get it removed, only for it to crop up again from a different account at a later date.

Because of this, there have been calls for social media platforms to be more proactive when it comes to seeking out and removing infringing work. Social media platforms wield a significant amount of power and generate substantial profits, so it is understandable that greater responsibility is being looked at, particularly when there are repeat infringements or infringers.

In 2019, the Digital Single Market Copyright Directive was approved by the EU. With that approval came considerable consternation among social media giants. This was because of the obligations that will be imposed on them – from obtaining authorisation from rights holders before protected works are accessible on the platform to using ‘best efforts’ to prevent future uploads of works that have been notified as infringing third party rights.

EU member states have until June this year to implement the directive and while the UK will not, as a consequence of Brexit, have to implement it, it wouldn’t be surprising if our own domestic laws evolved to mirror that of our European neighbours.

After all, one of the questions to be answered by the UK’s Digital, Culture, Media and Sports Committee in its inquiry on streaming is “how can the Government protect the industry from knock-on effects, such as increased piracy of music? Does the UK need an equivalent of the Copyright Directive?” – so, watch this space.

What can content creators do to better protect their IP rights?

In an ideal world, social media content creators should speak with a solicitor: this will help them identify how best to protect the IP they create and also help them avoid inadvertently infringing third-party IP rights.

Where creating content is part of a business, ensuring that you have advice on what is and is not permissible should be viewed as a necessary business expense; reproducing third-party content can be an expensive and stressful error if that third-party decides to sue for copyright infringement. Remember, this isn’t just about avoiding having a post taken down.

In day-to-day life, this is unlikely to be an overly practical solution, particularly for those who post for fun, as opposed to for their business. For those who are unable or do not wish to take legal advice, there are some very basic resources online (for free, on the Government’s website), which will help provide a guide as to the types of rights that exist and how they are infringed.

In all cases, the creator should read the terms and conditions they’ll be signing up for when they join a platform, to ensure they are happy with the rights they’ll be giving to that platform, when it comes to their work and how and when it can be reproduced by the platform in future.