Source Image : http://www.itproportal.com/2015/07/26/twitter-starts-censoring-copyrighted-jokes/
Intellectual property and social networks contents are new subjects which are questioned about the copyright of any post, video, picture on Facebook, Twitter, Instagram. What about a text of 140 characters alias the tweet.
THE AUTHOR OF THE TWEET
According to the article L.113-1 of the Code of intellectual property, ” The author quality belongs, unless proved otherwise, to that or to those under the name of whom the work is revealed “. For the author quality, it’s about a simple assumption on the person who posts the contents. It was asserted by the Court of Cassation on July 10th, 2014 when the assumption of tenure is based on the operation; it’s about the person who posts the contents, in this case the tweet. In January, 2014, Larousse took out a work on ” the terms of the tweet and the net “, it took back tweets without preventing their authors, nor quoting them. Thus there was an infringement on the copyright. Indeed, in general terms of use of Twitter, it is specified that the user keeps his rights on all the published contents.
“What belongs to you returns to you – you are an owner of your Contents (and your photos are a part of these Contents).” Underline general terms of use.
THE COPYRIGHT IN QUESTION
The copyright is a privilege attributed to the author of a work of the mind and which contains a property right and a moral right. The criterion to determine if the work enters within the framework of the copyright is the originality which can be translated by the expression of the free and creative choices of the author.
Is the tweet a work of the spirit? According to the article L.111-1 of the Code of the intellectual property: ” the author of a work enjoys on this work, only because of his creation, of an exclusive and opposable immaterial property right to all. ”
Lionel Morel pleads for a copyright adapted to the practices of Web 2.0, considering that “we arrive maybe with the microblogging at a limit, from which the intellectual property will not any more manage to find of taking, except for falling in the absurd “. A tweet could thus be protectable.
So that the tweet is copyrighted, it is thus necessary whether it is a “original work”.
However, Twitter encourages itself the users to place their messages in the public domain, claiming itself no right top.
In an article of July, 2009, the World Intellectual Property Organization (WIPO) questioned specialists about the question of the copyright of the producers of tweets. The general problem was the level of creativity, the tweets which can not ” reach the level of creativity required to be copyrighted “.
The WIPO confirms all the same their protection by specifying that ” some people could well answer the minimum degree of originality required by the law on the copyright and it about is the support. «
According to Philippe Piot, the funny tweets enters in this case of face and constitutes a work of the mind ” because they translate the personality of their author “. ” To reproduce a joke emanating from Twitter, without quoting his author, it’s called of the forgery of a work of the mind ” according to master Anthony Bem, lawyer a specialist of the new technologies.
For example, the tweet of a film critic of the New York Times was partially resumed, without the agreement of his author and in violation of the conditions of use of Twitter, within the framework of an advertising campaign in favour of the last movie of the brothers Coen, Inside Llewyn Davis.
HOW TWITTER ACTS :
” I simply told them that as independent author, I made my living by making jokes, and as I used some of my tweets exactly to test them. I then explained that this tweets was a part of my intellectual property, and that the users in question had no permission of reposter without crediting me ” underlines Olga Lexell, author American independent about the copyright of its tweets.
” The complaints of copyright concerns the casting or the unauthorized publication of contents protected by copyright. As indicated in our General terms of use, Twitter tries hard to enforce all the relevant laws of Copyright. If a profile does not contain image or links towards documents protected by copyright, there is no violation of copyright ” precises Twitter. By virtue of an American law adopted in 1998, Twitter deletes the tweets of the Internet users which take back the words of the other users, but without quoting them. A number of publications were moreover eliminated, in the name of the Digital Millennium Copyright Act.
From now on, it’s enough to complete a form given on the social network to lodge a complaint as ” holder of the rights of a tweet “. Twitter, as most of the companies which work thanks to the contents generated by the Internet users, has a complete system to manage these requests.
If a user publishes Tweet without quoting his author, the network considers that the aggrieved person has to answer herself by contacting personally the user who was guilty of the plagiarism. Tweet thus seems, to a lesser extent, to be protected by an intellectual property right even if Twitter considers that the plagiarism is a matter of the personal conflict between users.
Let’s except the future case law with judges to put the real property of a tweet and let’s wait news practices of social networks with copyright, debate is launched.
Charles-Antoine Jaubert – Etudiant en Master 2 Droit de l’économie numérique à l’Université de Strasbourg. Juriste, passionné par le droit des nouvelles technologies et les questions relatives aux données personnelles, propriété intellectuelle, réseaux sociaux, médias et musique en ligne
