Consumers’ FAQs on copyright: copyright infringement in social media

There has been published a very useful guide for consumers and for anyone who is curious about copyright. This guide explains different things, relating to IP rights, in simple way. The project has been commissioned by the European Union intellectual property office.

The Guide aims to give ‘answers to the most frequently asked questions (FAQs) average consumers have in relation to copyright for all twenty-eight EU Member States.’ The present Summary Report highlights the convergences and differences in national copyright laws in relation to the 15 consumer questions.

The upload of a work protected by copyright affects both the author’s right to reproduction and the right to communication to the public. This means that the upload of a work created by another person and protected by copyright would amount to infringement unless the use, including the upload, is authorised by the rights holder. Communication to the ‘public’ implies that the work is not only communicated to a small circle of family members or friends within a closed network. In brief, the only safe way of uploading a work created by another would be to obtain authorisation for the use. When authors of works have, for example, opted for a Creative Commons licence, users should check the terms and conditions in order to know what uses are allowed.

In some cases, the reproduction and the communication to the public may be allowed on the basis of an exception or limitation. Some experts mention the limitations relating to quotation, parody, to persons with a disability or uses for the purpose of information, teaching or research. Another limitation mentioned is the one for uses relating to works of architecture, works of visual art, works of applied art or photographic works that are permanently located in places open to the public (the so-called panorama exception, which is not implemented uniformly across the EU).

The situation regarding user liability for ‘automatic’ uploads on a user’s social media account is unclear in several Member States (see, e.g. DE, IE, FR, HR, IT, MT, NL, FI, UK). Many experts refer to the user settings in the framework of social media accounts, and to the active role that the user could take in accepting or rejecting the possibility of ‘automatic’ uploads. In this sense, numerous experts (BE, BG, CZ, DK, DE, EE, FR, LV, LT, LU, HU, PL, SI, FI) state that a user could (probably) not be held liable for copyright infringement if he or she has taken a purely passive role, for example, when the upload took place on the basis of the default and not the manual settings (see, e.g. the information provided by the expert from BG), if the user did not know or ought not to know about the infringement (see, e.g. the information provided by the experts from DK, DE, EE, HU, SI). In practice, it appears that the user normally has some control over his or her account and possible uploads.

According to the experts from Greece, Portugal and Slovakia, ‘automatic’ upload would probably not constitute copyright infringement in these jurisdictions. It appears that in Austria, Romania and Sweden, users may be held liable for ‘automatic’ uploads. In practice uploads often take the form of embedding. In this case the liability issue would often not have to be addressed because no liability would arise in the first place (if certain conditions are met).

As to linking, it does not amount to copyright infringement in most Member States, as long as certain conditions are fulfilled. The main conditions mentioned by the experts for linking to be lawful are that the work has been made available online with the rights holder’s authorisation, and that the rights holder does not use TPM or any other measures to restrict access to the work for a specific audience.

As to embedding, a number of experts answer in a similar way about linking, that is to say, it is lawful if the work in question has been made available online lawfully, and if no TPM are used. Some experts state that embedding may amount to copyright infringement because it would entail an act of communication to the public (CZ, LU, PL). In Slovenia, embedding appears only to be lawful in the event of non-public access (persons that are inside the usual circle of a user’s family or the circle of his or her personal acquaintances).