From Public to Public Domain ( Copyright issues on Social Networking Apps) Dr. Yachi Chiang Assistant Professor, National Taipei University of Technology

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Question 1 SNA as a Copyright Threat

The Case in Taiwan

Traditional Copyright Concept Permission Fair Use Defense

Uploading a Photo on Social Media Sites(SNS)Facebook , Twitter , Instagram… … Terms and Conditions of Facebook

Facebook Help Center QA Do I retain the copyright and other legal rights to material I upload to Facebook? Yes, you retain the copyright to your content. When you upload your content, you grant us a license to use and display that content. For more information please visit our Statement of Rights and Responsibilities, which contains information about intellectual property, as well as your privileges and responsibilities as a Facebook user.

Facebook Statement of Rights and Responsibilities 2 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: 1 For content that is covered by intellectual property rights, such as 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. 2 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). 3 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, read our Data Use Policy and Platform Page.) 4 When you publish content or information using the Public setting, it means that you are allowing everyone, including people not on Facebook, to access and use that information, and to associate it with you (i.e. your name and profile picture). 5 We always appreciate your feedback or other suggestions about Facebook, but you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them).

Facebook Definition Definitions By "Facebook" we mean the features and services we make available, including through (a) our website at www.facebook.com and any other Facebook branded or co-branded websites (including sub-domains, international versions, widgets and mobile versions); (b) our Platform; (c) social plugins such as the Like button, the Share button and other similar offerings and (d) other media, software (such as a toolbar), devices or networks now existing or later developed. By "Platform" we mean a set of APIs and services (such as content) that enable others, including application developers and website operators, to retrieve data from Facebook or provide data to us. By "information" we mean facts and other information about you, including actions taken by users and non- users who interact with Facebook. By "content" we mean anything you or other users post on Facebook that would not be included in the definition of information. By "data", "user data" or "user's data" we mean any data, including a user's content or information that you or third parties can retrieve from Facebook or provide to Facebook through Platform. By "post" we mean post on Facebook or otherwise make available by using Facebook. By "use" we mean use, run, copy, publicly perform or display, distribute, modify, translate and create derivative works of. By "active registered user" we mean a user who has logged in to Facebook at least once in the previous 30 days. By "application" we mean any application or website that uses or accesses Platform, as well as anything else that receives or has received data from us. If you no longer access Platform but have not deleted all data from us, the term application will apply until you delete the data.

Summary Facebook intends to facilitate data circulation within the website and its partner applications or intends to make all public posts for free? (to “use” is not the same as to use “for free”) How much control of personal data we have on SNS? (Making it public is part of the author’s right in copyright system, privacy settings deal with privacy not IP rights ) By using Facebook and choose public setting, does it scare users away by giving up the IP rights?

Case AFP v Morel ©DANIEL MOREL One of the eight images by Daniel Morel of the aftermath of the January 12, 2010 Haiti earthquake that was distributed without permission by AFP and Getty Images. - See more at: http://www.pdnonline.com/news/Morel-v-AFP-Copyrig-9598.shtml#sthash.dHcUwMa3.dpuf

Background of the Case The case began in 2010 when Morel alerted AFP and Getty Images that they were distributing his exclusive images of the January 12, 2010 earthquake in Haiti without his permission; Morel received no payment for the use of his images. A Federal Court judge ruled in January that AFP, which originally distributed his images, had infringed his copyright. The jury trial that was to determine whether or not the infringement was willful, and what statutory damages should be awarded to Morel.

Terms and Conditions of Twitter(1) You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

Terms and Conditions of Twitter(2) You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

Terms and Conditions of Twitter(3) Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

Terms and Conditions of Twitter(4) You are responsible for your use of the Services, for any Content you provide, and for any consequences thereof, including the use of your Content by other users and our third party partners. You understand that your Content may be rebroadcasted by our partners and if you do not have the right to submit Content for such use, it may subject you to liability. . .

Court Decision http://www.nysd.uscourts.gov/cases/show.php?db =special&id=256

Key Sentence As Judge Pauley already explained, the Twitter TOS spell out expressly the entities to whom a license is granted, namely Twitter and it partners—and AFP does not contend that it is one of Twitter’s “partners.” Id. Construing the Twitter TOS to provide an unrestrained, third- party license to remove content from Twitter and commercially license that content would be a gross expansion of the terms of the Twitter TOS.

Jury Decision A jury has awarded photographer Daniel Morel $1.2 million in damages after deciding that Agence France-Presse (AFP) and Getty Images willfully violated his copyright. The award is the maximum amount of statutory damages possible under the law. AFP and Getty Images were also found liable for 16 violations of the Digital Millenium Copyright Act. The verdict was read in Federal Court in Manhattan

AFP Response Getty Images and Agence France-Presse (AFP) have asked a federal district court to undo the $1.2 million jury verdict against them for willful infringement of photographer Daniel Morel’s copyrights, calling the verdict “a miscarriage of justice.” In a brief they submitted to the US District Court in Manhattan last week, the agencies argued that “no reasonable jury could conclude either AFP or Getty acted willfully as defined under applicable law, based on the evidence in the record.” They asked the court to vacate the decision in one of three ways: declare that AFP and Getty are liable for “regular” rather than “willful” infringement, thereby forcing a reduction of the damages awarded; give the agencies a chance to re- argue their case before a different jury; or simply cut Morel’s award for copyright infringement from $1.2 million to $200,000 and call it a day.

Question 2 SNA as a platform to Facilitate Circulation of Orphan works in Digital Age

Changes to UK Copyright Law(1) Orphan Works: In the past, orphan works were typically older media, such as old recordings where the owner could not be tracked down and because of old fashioned copyright law, the works could never be made digital or used without permission until the copyright expired. However, many images found online are being "orphaned" shortly after they appear due to the fast and ubiquitous nature of images that are uploaded, retweeted, shared and pollinated around the world, making it impossible to track down the original owner.

Changes to UK Copyright Law (2) USERS OF POPULAR SOCIAL MEDIA WEBSITES such as Facebook, Twitter and Instagram are at risk due to changes to copyright law in the UK that could allow others to exploit photos that they upload online. The adjustments are contained in the Enterprise and Regulatory Reform Act, or as it has been nicknamed, the "Instagram Act", which was passed through Parliament in 2013. (2013/4/30)

Changes to UK Copyright Law (3) The new Act means that "would-be users" such as commercial publishers could potentially pay a fee to use these "orphan works", hence why social media users should be concerned about the new law. Even more worryingly, to prove a work is "orphan", the would-be user has to show that the original copyright owner cannot be found by carrying out a "diligent search".