Copyright and social media: rules of thumb under Belgian law

Do the rules of copyright apply to social media as well? The answer is 'yes, they do', though there is often some more room for flexibility when it comes to their practical application.

Few court cases on copyright and social media

First, it is important to note that there are very few court cases on copyright infringement on social media, so it is fair to say that copyright on social media has not really been put to the test yet.

Notice and takedown procedures

Also, most social media platforms implemented a 'notice and takedown' procedure, which usually allows copyright infringements to be resolved out of court. How does a system of 'notice and takedown' work? Well, it's fairly simple. On the social media websites you will find the contact details of a copyright 'agent' who is appointed by the social media platform to handle copyright complaints. You can contact the agent in case you consider your copyright entitlements to be infringed on the social media network. As a consequence, the allegedly infringing photographs, videos, texts or other material may be removed. Most social media providers also reserve the right to close an account in case of repeated abuses. In most cases, there is also a possibility of a filing a 'counter-notice', to protest against the removal of your photos, videos or other data.

Notifications of infringement

It is quite evident that the most efficient way to deal with problems of copyright violations on social media is often to simply notify the infringer of the problem and request him or her to take the content off-line. If needed, you can have this done by your lawyer; in other cases, a simple email or (registered) letter may do. Adding deadlines and/or claims of damages often are very effective as well (though they are considered as aggressive too, so make an assessment of how much of this you need).

Court procedures

Under Belgian law, regardless of the 'notice and take down' procedures, you always retain the right to start a court procedure against the infringers. You can sue in court either to put an end to the infringement or to obtain compensation for the infringement (or both together). In practice, it is not always easy to prove the amount of the damages and the causal link between the infringement and the damages.

Liability under social networks' terms of use

Most social network sites state that the responsibility and liability with regard to the use of copyrighted materials on the network rests entirely with the users. This is for example the case with Facebook, Instagram, Pinterest, Twitter, LinkedIn, Youtube, Vimeo, Dailymotion, Flickr / Yahoo, Tumblr, Foursquare, Etsy, etc. (check their terms of use / terms and conditions if you are looking for some fine pieces of literature). However, this does not automatically mean that the operators of these sites will always escape liability in court.

Pictures taken by photographers

It is important to keep in mind that when posting pictures online that have been taken by a professional photographer, you should always check whether you have sufficient rights to use those photos on social media (often you will have no right to post these photos at a site other than your own site, or to allow these photos to be 'shared' or 're-pinned' by others).

Assessment of damages

In all cases, you should make an assessment of the potential damage that your use of the copyrighted material can cause the copyright holder (is the potential damage small-large-nonexistent?). This often gives a good indication of potential legal risks. Although it are often mainly the offenders 'with deep pockets' who risk prosecution, this will not always be the case with regard to copyright infringements.  So always be careful when using other people's intellectual property on social media platforms. A rule of thumb is that you should handle copyrighted material on social media networks exactly the same way as you would do on your own (business) website. If you would not take the risk to post a picture that you do not own on your own website, why would you post it on your professional/business page on a social media platform? 

Conclusion

In a nutshell: the rules of copyright do apply to social media. If you share or post something on a social media platform, you should check whether you have sufficient rights to do so. In practice, this means that you must obtain the prior permission of the right holder to use photos, videos or texts on social media or that you must make sure that these are available for use through a license (e.g. a free license). Always check whether the prior permission or license is broad enough to allow not only copying but also (re-) publishing online. Under particular circumstances, quotation of images or texts may also constitute lawful uses of copyrighted works. Also, bear in mind that you should always mention the original author of the work. The often-heard argument that right holders should not complain about their pictures or texts being shared because this is in fact free publicity, cuts no ice with copyright specialists (and judges).

For more information on copyright  problems  on Pinterest, read my separate blog post. 

For an essential guide on Belgian copyright law, visit my separate blog post.

For more information, do not hesitate to contact me.

Author: Bart Van Besien

Attorney

Finnian & Columba

Belgium

bart@finnian.be

Attorney - Lawyer - Belgium - European Union (E.U.)

Specialised in intellectual property law (copyright, trademarks, patents, domain names, etc.) and media law.