Legally Curious: Is There Copyright In A Social Media Post? By Oliver Omoredia

Currently, it is estimated that there are about three billion
people worldwide using social media. The ability to post content is
the main attraction of social media, and generally, social media
sites rely on contents created by users to drive its
sustenance.

Statistics show that about 1.56 billion people log unto Facebook
daily out of which about 1billion make posts daily. That is a
billion users who subject their post to possible usage by other
users. With this ability to share posts at the click of a button,
it is easy to write a beautiful article on Facebook and in few
minutes the post goes viral without the author’s express
consent.  Indeed new businesses have emerged in social media
that sell the content of social media users, not directly, but by
using these content to generate traffic of followership which
in-turn makes their handle an asset of value driving profit.

The issues highlighted above are but a few ways social media
continues to stretch copyright laws, revealing more significant
imperfections in the system of protection afforded by social media
usage, despite the proclamation of protection which is sometimes
difficult to practically observe or explain. This article considers
the copyright protection of social media post, with introspect on
the Nigerian copyrights regime.

SOCIAL MEDIA AND COPYRIGHT

It is worrying, though not very surprising, that despite about
12 years of active social media presence globally, there is yet to
be any concrete law or enforceable regulations regarding sharing of
social media posts by other users. Several factors contribute to
this “lack of cover” in the “socio-space” with few answers. Some of
this questions are the question of whom to sue due to the
difficulty in identifying the infringer; where to sue, particularly
in cross-border/territorial actions and applicable laws, the
difficulty in recognizing the actual author of a post etc.

These lingering questions have led some to conclude that there
is no copyright in a social media post, or to put it differently,
you lose your copyright in any work the day you voluntarily publish
it online. This assumption is however not generally correct.

Is there copyright in a social media post?

In the absence of extant regulations on social media sharing,
protection of social media posts depends largely on the extant
copyright laws, which differ according to jurisdiction. One
significant question to be verified is whether there is copyright
in a social media post. A consideration of the Nigerian Copyright
Act Chapter 68, Laws of the Federation 1990 leads us to query the
following:

Is the post eligible for copyright? Section 1
of the Copyright Act states that literary works; musical works;
artistic works, cinematograph works etc. are all eligible for
copyright protection. However, to be eligible these works must have
sufficient effort expended in their making to give them an original
character; and must have been fixed in any definite medium of
expression from which they can be perceived, reproduced or
otherwise communicated either directly or with the aid of any
machine or device. Without laboring on a voyage of analysis, the
summary is that by this provision, a social media post (whether
text or picture) is eligible for copyright protection.

According to Ryan Vacca, a professor at the University Of New
Hampshire School Of Law and a member of the school’s Franklin
Pierce Center for Intellectual Property,  “if you download an
image and post it, whether it be on your site, in a blog post, or
on social media, you’re likely committing copyright infringement.
Copying any images or user-generated content without the creator’s
permission can constitute infringement… Once it’s posted on social
media and the like, it doesn’t lose protection – it still has
copyright protection.”

When will a social media post be copyrighted under the
Act? A social media post though generally eligible for
copyright under the Act will not be conferred with copyright
unless, amongst others, if the maker of the work is an individual
who is a citizen of, or is domiciled in Nigeria or the work is made
in Nigeria (Section 2 and Section 3 of the Act)

Therefore a social media post by a Nigerian on Facebook is
eligible for protection under the Nigerian Copyrights Act.

Is the copyright in social media posts against
copying?

As highlighted before, there are no rules expressly against
copying a person’s social media post, but there are provisions in
the Copyright Act which implies that the abrogation of such acts is
intended by the law:

Section 5 of the Act provides that copyright confers the
exclusive right to control doing in Nigeria of any
of the following acts in relation to a copyright work: to reproduce
the work or any material form of it;  to publish the work; to
perform the work in public; produce, reproduce, perform or publish
any translation of the work etc.  Section 14 of the Act adds
that copyright is infringed by any person who without the
license or authorization of the owner of the copyright
does, or cause any other person to do any of the above acts.

It is important to emphasize here that the protection afforded
under the Act only grants protection to prevent violation in
Nigeria. Therefore, the Act will not prevent violation in the U.S,
as such violation cannot be said to have been “done in Nigeria”.
This is one of the challenges highlighted above, as enjoying
copyright protection in a foreign jurisdiction requires special
procedure and registration.

Who is responsible for violation?

In the event that copyright in a social media post is violated
who is responsible: the site or the infringing user?

On this, it is important to consider the terms of each social
media site.  It is noteworthy that social media sites
generally do not claim or own copyrighted works posted on their
site, rather, users sign an agreement that gives the site a license
to use the work without payment. This protection for social media
sites is captured differently but has the same implication:

Twitter for instance states that “You retain your
rights to any Content you submit, post or display on or through the
Services. By submitting, posting or displaying Content on or
through the Services, you grant us a worldwide, non-exclusive,
royalty-free license (with the right to sublicense) to use, copy,
reproduce, process, adapt, modify, publish, transmit, display and
distribute such Content in any and all media or distribution
methods (now known or later developed)”

Facebook has similar terms which state that you own
“all of the content and information you post on Facebook, and
you can control how it is shared through your privacy and
application settings.” In addition, for content protected by
intellectual property rights that “you grant us (Facebook) a
non-exclusive, transferable, sub-licensable, royalty-free,
worldwide license to use any IP content that you post on or in
connection with Facebook (IP License)”.

These terms are compulsory terms which you must accept before
you are registered to use these platforms.

While the terms of usage protect the sites from law suits
against copyright infringement, they do not protect other users.
Agence France-Presse and Getty Images found this out the hard way
in 2013.

Daniel Morel, a free-lance photographer in Haiti, took photos
after the 2010 earthquake that killed more than 250,000 people. He
posted the photos on twitter and an editor at AFP discovered
Morel’s photos through another Twitter user’s account and provided
them to Getty. The photos were then widely disseminated to Getty’s
clients, including several television networks and the Washington
Post.

Morel accused AFP and Getty of improper use, then AFP sued him
seeking a declaration that it had not infringed his rights. Morel
counterclaimed. AFP had initially argued that Twitter’s terms of
service permitted the use of the photos. The Court view that though
Twitter’s policies allowed posting and “retweeting” of images, it
did not grant the right to use them commercially. Consequently, AFP
and Getty were ordered to pay $1.2 million to the freelance
photojournalist.

When is it fair to infringe?

As clearly seen from the AFP case, while the retweeting of
images on twitter may, on its own, not be actionable infringement
of Morel’s photos, commercializing the violation was actionable.
This brings to fore a defence in copyright violation of social
media content: the defence of fair dealing or usage.

The third schedule of the Nigerian Copyright Act, states that
the doing of any acts, which ordinarily amount to copyright
infringement, by way of fair dealing for purposes of research,
private use, criticism or review or the reporting of current
events, subject to the condition that, if the use is public, it is
accompanied by an acknowledgement of the title of the work and its
authorship will not amount to infringement.

The provision of the above schedule would ordinarily be a
defence to most social media sharing and reposting of copyright
works as it would seem easy to claim any of the above uses.
However, this is more arguable, when commercial benefit is derived
from an apparent infringement. For instance, where a blog utilizing
posts of social media users to create its own content put its
handle over such photos or videos and as a result gains followers
which it then derives commercial benefit from, violation may be
implied.

The Courts in reviewing a fair use would consider four primary
factors: The purpose and character of the use; the nature of the
copyrighted work; the amount and substantiality of the portion
taken; and the effect of the use upon the potential market.

Indeed the fact that Facebook and Twitter
expressly request a permission to use the copyrighted post of its
users is an acknowledgement that there is copyright in such
post.

In Conclusion

The ability to adequately protect copyright in social media
posts is one of the many areas where technology has moved faster
than the law. Social media gives users the ability to share content
instantly and this comes with its attendant copyright issues. While
it is clear that copyright exists in social media posts, there is
an atmosphere of uncertainty in the areas of protection and
enforcement, largely due to the dearth of case law on social-media
related copyright.

It is however always better to, where possible, ensure that
consent of the author of a work is sought and obtained before
publishing the social media content of someone else. According to
Rory Kay, a U.S based IP Lawyer, “If a user cannot determine the
authorship of content, then he or she should not use it. If the
user can identify the author, then it’s necessary to contact them
and ask for permission to share content…The golden rule is simple:
if the content was offline rather than online, would you seek out
permission to use it? If so, you must do so online just as you
would offline.”

Oliver Omoredia, Legal Practitioner,
08100193573, oliveromoredia@yahoo.com

Islamic Dowry for Marriage is now N13,438-
Cleric

An Islamic cleric, Dr AbdulHameed Shuaib Agaka has said that the
current value of the dowry to be paid in lslamic marriage that was
in consonance with Nigeria’s current economy is N13, 438.

Speaking in his weekly Islamic radio programme monitored in
Ilorin, Dr. Agaka said that the payment of dowry was the most
important aspect of an Islamic marriage.

According to the cleric, who was a former Scholar with the
School for Arabic Studies and Bayero University Kano, the marriage
would become invalid and illegal without the dowry being paid.

He said: “The dowry in Islam is paid by the man to his
wife-to-be as an honour and respect given to her to show his
sincerity and commitment to the marriage which also signifies sense
of responsibility and obligation.”

According to him, the acceptable current dowry in any Islamic
marriage in Nigeria’s local currency stands at N13,438, adding that
it is however permissible for wealthy husbands to pay amounts
higher than the official acceptable fee.

The former don said prospective husbands could use cows, parcels
of land, gold and other valuables as payment of dowry for their
intended wives.

He advised Moslem’s to always abide with the validities under
the lslamic marriage to curb cases of unwanted children in the
society.

Dr. Abdulhameed who is also the Chief Imam of Agaka in Ilorin
Emirate of Kwara State, condemned what he described as ostentatious
spending in Islamic marriages, saying that what was most
significant in any Islamic marriage was payment of dowry to the
bride and adequate care and protection after marriage.

“It is only the payment of dowry that guarantees legal access
and full control of wife by the husband,’’ the cleric said.

By PRNigeria