Dare to share - copyright ownership on social networking sites
Social networking sites (’SNSs’) play an increasingly important role in society. A study conducted by Ofcom in 2019 revealed that 93% of 16 to 24 year olds in the UK have a social media profile. SNSs act both as a way of communication and a valuable platform for photographers and other creators to showcase their work. In a report published in 2015, the UK IPO suggests that social media plays a role in facilitating intellectual property infringement. SNSs do little to educate their users and the law seems inapt to deal with the variety of content created and shared on SNSs.
Identifying ownership
Under the Copyrights, Designs and Patents Act 1988 (‘CDPA’) copyright ownership vests in the creator of the work (section 11(1) CDPA). In the case of images, the person who took the image will usually be the creator. While this might be simple in an offline scenario, in the context of SNSs the question of ownership is anything but straightforward. Content can be reposted numerous times making it difficult to identify the original source. Where content goes ‘viral’, i.e. is viewed or shared millions of times, it might become nearly impossible to track down the original source as well as pursue each infringer.
Selfie dilemma
Selfies have become a popular tool to take images. Following copyright law, the copyright holder will be the person who took the selfie. This has led to obscure claims, such as the Monkey Selfie case where a photographer argued that he owned the copyright in an image taken by a monkey. Another example is the legal debate about who owns the copyright in the infamous Oscar selfie taken by Ryan Reynolds but initiated by Ellen DeGeneres. In such cases, unresolved questions of ownership curtail the ability of third parties to use the image, unless their use can be shown to fall within the scope of fair dealing.
Filters and derivative works
Further questions are raised by the use of filters or other photograph enhancement applications and whether their use could lead to the creation of a derivative work i.e. a new copyright protected work. The UK IPO has provided guidance stating, “that it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’”. This suggests that in most cases the use of photo enhancement tools would not warrant the necessary creative input to meet the originality requirement. Despite this, such tools are widely available on most SNSs without making users aware of their copyright implications. Instagram’s copyright policy does not mention filters once.
Risk for users
Copyright ownership has become more complex as online content has developed in ways not envisaged by copyright legislation drafted long before the rise of SNSs. The risk of infringement is transferred onto users who are not provided with clear guidance by the law or SNSs who profit from users sharing content, regardless of the lawfulness of such sharing.
