Are Tweets Copyright-Protected?
By Consuelo Reinberg
Copyright and tweeting – the debate was bound to happen. Can repeating a message on Twitter - a free social networking and micro-blogging service that enables users to send and read other users' updates (known as tweets) – actually be construed as copyright infringement? This article, by Consuelo Reinberg, content editor, BP Council, was first published in the BP Council Note, June 18, 2009.
A copyright debate that was already brewing positively boiled over when Dallas Mavericks owner, Mark Cuban, was recently slapped with a US$25,000 fine by the National Basketball Association (NBA) for tweeting during a game about allegedly lousy officiating. What launched a thousand blogs about tweeting and copyright, though, was that ESPN republished his Twitter feed – without his permission – further ticking him off and spurring him to add his two cents' worth to the debate. Were his tweets entitled to copyright protection? Can one copyright a tweet? The legal experts' answer to the first question: not a chance. And to the second: don't bother.
As new communication technologies emerge, so do new copyright infringement questions. But copyrighting a tweet would be a difficult-to-make and hard-to-enforce legal claim – for many reasons. Most tweets cannot be copyrighted because of size, content and scènes à faire issues.
Size – According to an Internet posting on blogherald.com by Jonathan Bailey, every time a new communication technology emerges, it shifts the copyright landscape, and new copyright issues that do not fit existing intellectual property (IP) standards arise. With Twitter, for example, while its terms of service clearly state that tweeters own anything they post on the service, the 140-character limit to a Twitter post makes it almost impossible for the work to reach the level of creativity required for copyright protection. In the same vein, titles or short phrases usually cannot be protected since their length contributes to their lack of originality, as defined by copyright law.
Content – Lawyer Brock Shinen’s article “Twitterlogical, The Misunderstanding of Ownership” focuses on a salient point: facts are not copyrightable. And facts are what tweets are mostly about – from talking about the weather, to communicating what one had for dinner the night before, to complaining about the morning traffic. Whether one expresses them in a funny or unique way does not make a difference. Yes, one can potentially protect a particular expression of a fact, but one cannot then prevent other people from writing about the same fact.
Scènes à faire – The French moniker, according to Clint Fabiosa and Ana Liza Villamor of IPROTECT, describes a work or part of one that is not copyright-protected, because the elements used to describe a particular “scene” are indispensable, standard or naturally occurring – and that scene cannot be expressed in any way other than through those elements. For example, two writers can both use "brilliant" or "sunny" to describe a sunrise. Scènes à faire are used to weed out unprotectable similarities between two works in terms of character, setting or theme. When it comes to tweeting, says Shinen, 100 tweeters are bound to describe a commonly occurring situation with the same or similar expressions.
Copyright is granted to true, original authorship – not to tweeters saying basically the same thing.
Can a tweet ever be copyrightable?
Most experts agree the response should not be an all-or-nothing answer, but rather "it depends." While most tweets would not pass the "copyrightability" test, some might meet the minimum amount of originality demanded by copyright law. For example, in an Internet posting by Michael F. Martin for the broken symmetry blog, the author states that a tweet reflecting a selection or arrangement of facts, rather than a rote report, might make the subject matter copyright-eligible. Other experts claim a collection of tweets – taken as a whole – may meet the criteria to be copyrighted. But Shinen asks a key question: Even if one did own a tweet, what would one do with it?
Copyright in the age of social networking
The success of social networking sites like MySpace and Facebook has brought new IP issues to the fore. The ability to post – possibly copyrighted – video and audio clips or incorporate downloads makes these sites fertile environments for copyright infringement claims. In Twitter's case, according to Jonathan Bailey's article “Tweetbacks, Copyright and Scraping” (blogherald.com), plug-ins that search Twitter for tweets that link back to posts on a blog and display those tweets on the site under their respective entries, have begged the question: is it legal to copy and publish others’ tweets without permission just because they link back to your site?
Another issue, applicable to blogs in general, is scraping – the process of scanning through a large number of blogs, searching for and copying content through automated software. Scraping is copying a blog not owned by the initiator of the process and is considered copyright infringement if the material is copyrighted, unless there exists a license relaxing the copyright.
The bottom line: as communication technology evolves, so must copyright law if creators are to be protected while, at the same time, freedom of expression is upheld.
|Twitter - What are you doing?|
Twitter is a free social networking service that allows users to send and receive messages known as tweets via the Twitter site or a cell phone short message service (SMS). Tweets, limited in size to 140 characters, display on the author’s Twitter profile page, and are forwarded to “followers” – thosewho subscribe to receive messages from that person. The Twitter default is to allow open access to all for all messages, but authors can limit delivery to their circle of friends. Tweeters do not have bios; the only thing they can do is answer the question: “What are you doing?”
Twitter went live in 2006, and exploded in popularity in 2007 – becoming so trendy it frequently crashed due to traffic overload. It is the third largest, fastest growing, social networking service on the Internet. In February 2009, it grew 1,382 percent – compared to 228 percent for Facebook. Compete.com estimated the number of monthly visits to Twitter in February at 55 million. But with soaring phone bills and messages coming in at all hours, users may be feeling a bit too connected. Nielsen Online claims that Twitter only retains 40 percent of its users, who often drop the service after a month.
Twitter was used as a publicity mechanism in the 2008 U.S. presidential campaign. Celebrity users include Stephen Fry, Ashton Kutcher, Ellen DeGeneres and Britney Spears.
By Sylvie Castonguay, WIPO Magazine Editorial Team, Communications Division
The WIPO Magazine is intended to help broaden public understanding of intellectual property and of WIPO’s work, and is not an official document of WIPO. The designations employed and the presentation of material throughout this publication do not imply the expression of any opinion whatsoever on the part of WIPO concerning the legal status of any country, territory or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. This publication is not intended to reflect the views of the Member States or the WIPO Secretariat. The mention of specific companies or products of manufacturers does not imply that they are endorsed or recommended by WIPO in preference to others of a similar nature that are not mentioned.