With the growing popularity of animation, video, music and other works on social media, an increasing number of internet users are also becoming content creators. Are the copyrights in these online works protected? What are the relevant laws? Today we will take a look at how intellectual property laws apply to social media.

Which works are protected by copyright?

The types of original works protected by copyright include:

literary works, including computer programs;

artistic works, including photographs, maps and design plans; and

dramatic works.

Copyright also protects certain non-tangible works, including:

sound recordings;

films;

television broadcasts.

How does copyright work?

Broadly speaking, the owner of a copyright-protected work has the exclusive right to reproduce or use the work, including how such material is disseminated in the public domain. In addition, copyright owners can prevent others from using the protected work without authorisation, and recover damages.

How is copyright acquired?

The creator of a work will own the copyright. However, there are exceptions, such as an employee who creates a work in the course of their employment, who may not own, or may not fully own, the copyright.

Can copyright be assigned?

Copyright can be assigned. When copyright is assigned to another party, the assignment must be made in writing. Once completed, the assignee becomes the new owner of the copyright.

Exclusive and non-exclusive rights

The law recognises that copyright owners can licence others to use their works. A licence can be exclusive, meaning that a person is able to use the material in a certain way, or during a specific period of time, or within a particular geographic area. For the original owner of the material, an exclusive licence may prevent them from using the material during the term of the licence, meaning that even the original author may be unable to use the work for a specified period.

A licence can also be non-exclusive, meaning that multiple parties have the right to use the work.

Copyright infringement

Copyright infringement generally occurs when a protected work is reproduced, distributed, performed, adapted or publicly communicated without the owner’s express or implied permission.

Copyright and social media

The copyright in any original work posted on social media remains with the owner. However, the terms of service of most social media sites can be classified as a form of licence, allowing sites such as Facebook and Twitter to use and publish user-generated content. As an example of the type of terms of service a social media site may use, we can look at Facebook’s sharing and content terms of service, which read as follows:

Sharing Your Content and Information

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 that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide licence to use any IP content that you post on or in connection with Facebook (IP Licence). This IP Licence ends when you delete your IP content or your account, unless your content has been shared with others, and they have not deleted it.

When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).

When you use an application, the application may ask for your permission to access your content and information as well as content and information that others have shared with you. We require applications to respect your privacy, and your agreement with that application will control how the application can use, store, and transfer that content and information. (To learn more about Platform, including how you can control what information other people may share with applications, please read our Data Use Policy and Platform Page.)

When you publish content or information using the "Public" setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).

This means, in practice, that when we publish our own original works on social media, we have already agreed to share the copyright in those works with the social media platform to a certain extent.

How is copyright infringement determined?

Content creators may find works on the internet that closely resemble their own original works, and suspect that others have copied their work and infringed their copyright. So how is copyright infringement determined?

Generally speaking, if a work contains an important, unique or essential part of the original work, it will be considered to contain a "substantial part" of the original, regardless of whether that "part" constitutes a small or large proportion of the infringing work.

It is important to note that a "substantial part" must be assessed qualitatively rather than quantitatively.

For example, in a 2010 case, it was alleged that Australian rock band Men at Work’s 1981 hit "Down Under" had copied the first two bars of the children’s song "Kookaburra Sits in the Old Gumtree". The court held that these two bars formed the melody of Kookaburra and were therefore a substantial part of the original. The court ruled that Larrikin Music Publishing, the copyright owner of the Kookaburra song, was entitled to claim 5% of the royalties from "Down Under".

This case shows that even if you only copy a small portion of someone else’s work, you may still infringe copyright.

If a work is too simple or lacks originality, it may not be protected by copyright — for example, single words, titles or slogans. However, you may still encounter difficulties in other areas of law, such as trademark law.

Remedies for copyright infringement

If copyright has been infringed, the following remedies can be used to stop the infringer from continuing to infringe copyright and to obtain compensation.

1. Injunctions

In appropriate cases, an injunction can require an infringer to never again infringe the copyright (for example, where the court has established or presumed a risk of ongoing infringement).

2. Financial compensation

Under the Copyright Act, financial remedies for copyright infringement include:

compensatory damages;

damages for conversion or detention of infringing copies;

account of profits and additional damages.

3. Delivery up or destruction of infringing articles

The court can order the delivery up, destruction or deletion of infringing articles. These orders are discretionary, taking into account factors such as whether the order can be effectively enforced and whether it will have any impact on third parties.

4. Publication of infringement judgments

Judgments of Australian courts in copyright cases, including applications for urgent relief, are published regularly.

Conclusion

In the internet age, we all own copyright in our own works to some extent, and at the same time face the possibility of having that copyright infringed. If you feel that your copyright has been infringed, please consult a professional lawyer to protect your rights.