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Author: email@example.com (Neville Hobson)
Reports emerged late last week that Twitter is deleting tweets that copy another tweeter’s jokes.
The Verge reports on a writer’s request to Twitter to remove a tweet that used her content (a joke) without permission and thus infringed her intellectual property rights:
I simply explained to Twitter that as a freelance writer I make my living writing jokes (and I use some of my tweets to test out jokes in my other writing). I then explained that as such, the jokes are my intellectual property, and that the users in question did not have my permission to repost them without giving me credit.
The Verge says that Twitter did the take-down under the DCMA (Digital Millennium Copyright Act), a part of US copyright law introduced in 1998. It’s a complex piece of legislation but very broadly, it supports the rights of copyright holders to control access to and downstream use of their content. It’s controversial as it threatens the concept of fair use under US copyright law, among other things. (You can read more about DCMA on the US government’s copyright website.)
I am a bit nonplussed that such firm action is happening now as plagiarising someone’s content has been part of the Twitter landscape since Twitter started in 2006. That’s not to say it’s been okay to do that (it’s not okay), I’m just wondering why this has come up only now and about jokes rather than anything more substantive.
And these examples are about using someone else’s content as if it is yours – surely common sense would ring your alarm bell on that – and all the examples I’ve seen were original tweets not retweets.
Still, it is interesting and illustrates that copyright law does apply to anything you publish anywhere, even Twitter, and even a joke, and a takedown will happen if Twitter thinks your complaint is valid.
Equally interesting is the jurisdiction. DCMA is a US law – how will that work in other jurisdictions that are not subject to a US law like copyright? Here in the UK for instance?
I suppose in theory if you’re in, say, the UK or China or Brazil, you could go ahead and use someone else’s joke in your tweet and not worry about any US law. Twitter can still take it down if the creator of that joke complains to Twitter and there’s probably little you can do about it other than sue Twitter. Good luck!
In thinking about this matter of jurisdiction, a little searching found Can You Copyright A Tweet?, a most interesting post on the TechnoLlama blog in January that discusses this very topic from a broad European perspective.
On the matter of a tweet, ie, text up to 140 characters:
European copyright law does not have a minimal limit on what constitutes a protected copyright work. For example, the EU Copyright Directive 2001/29/EC makes it clear in Art 2 that the reproduction “in whole or in part” of a work is to be considered an infringement, not stating a minimum amount for what is “in whole or in part”. It has generally been accepted in case law that the copying of a part of a work has to be substantial in order to infringe, but similarly this is a very subjective test, as what makes up a substantial element of the work is left for the court to decide. The broad language in Art 2 led to the Court of Justice of the European Union to establish a very minimal definition for what is an original work. In Infopaq (Case C-5/08) the CJEU says that a work is original if it is the author’s “own intellectual creation”.
Initially, if a tweet is protected by copyright, then its unauthorised reproduction “in whole or in part” would be copyright infringement. If I write a joke and it is copied in whole by someone else, then in theory I could sue for copyright infringement. But what about retweets? This is slightly trickier, as it is an important feature of twitter that makes the service richer. My own solution (and I am happy to be proven wrong here) is that any public account gives other users an implied licence to retweet the work. But what about non-automatic retweets, such as using the format: RT @technollama “I for one welcome our new 3D-printed Bitcoin drone overlords #yeswearethatold”. In my opinion, this would also be fine as long as it is clearly attributed, but I have no legal basis for the opinion other than it is common practice in the medium.
It is my firm belief that a large number of tweets in Europe are protected by copyright, and it is only a matter of time until this is tested in a case.
By the way, my tweets are licensed under a CC licence, so feel free to reproduce them as you see fit.
That’s a cat among the legal pigeons!