Monday, November 26, 2012

Facebook and your copyright


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For a few months now, I have been seeing my FB friends posting statuses announcing their IP rights over their content on FB. Being a lawyer that delves in IP on a miniscule level, these statuses raised my eyebrows... 

Different versions of similar "Data Privacy Notice" statuses floated around FB, but this is the recent one I have come across:

"In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, professional photos and videos, etc. (as a result of the Berne Convention). For commercial use of the above my written consent is needed at all times!

(Anyone reading this can copy this text and paste it on their Facebook Wall. This will place them under protection of copyright laws. By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook's direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates.

Long message! Phew! Big words too!

First thing first, the premise on which this status update is built is wrong. Public entity (or any entity, for that matter) has nothing to do with copyright laws. Also, UCC 1 1-308-308 1-103 is irrelevant here, it is usually incorrectly used believing that citing it in a notice would confer one to invoke extraordinary legal rights.  

The immediate questions that popped in my head was :

If you agreed to the 'Data Use' terms and conditions of the agreement while you signed up on FB, would a status message help? It sounds a 'fragile' attempt, at best.

And secondly, what exactly does the FB agreement say?

Truly, like all normal people (lawyers are pretty normal), I don't bother reading agreements (I read enough at work!). But like most websites, FB is transparent enough to let us see the T&C at any time.

So, what exactly are the new Facebook guidelines? I don't know.What I do know is the Statement of Rights and Responsibilities that you signed with FB, that has been last revised on June 08, 2012... Sure, we don't read those long agreements before clicking the 'I accept' button, but let's back-track... the same can be found here.

Accordingly, Clause 2, at first, says : "You own all of the content and information you post on Facebook"

Very well. That translates that I am the owner of my content and I can use it in any way I want! 

But beware of what follows:

Clause 2.1:

"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 license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it."

Hahah! FB caught you off-guard! Though you are owner of your artistic and literary work, as soon as you post it on FB, you give them permission to use in whatsoever way they want. Unfortunately, I cannot fathom what "use" will comprise of, it's too broad a term, but it would certainly include sharing your data with third party, for example, FB selling info to advertisers.

Now, I know sharing your info to third parties without you knowing it sounds immoral but don't take it too hard. I see it as a win-win situation. Okay, agreed, FB is in a slightly better position with this clause in place, but you also gain by posting your work on a social media platform this huge. You reach out better to people, your work is seen, heard and appreciated. You would agree that FB makes life easier for us artists. It gives us a good platform to show-case. Whether it is clicking photographs or uploading a painting or just a note like this one, you would agree FB is a powerful tool to reach out. And, best part: it's free!!

Of course, with some gain come some losses. Here, the loss might be that you are at risk of FB using your creations in any way and not giving you a penny as royalty, but dude, YOU signed the agreement! It is assumed you read the risks, understood and then accepted the agreement. 

Good news is: FB has not asked you to waive off your moral rights. Simply put, moral rights (Article 6bis, Berne Convention) are your (1) Right to claim authorship of your work and (2) Right against distortion, modification or mutilation of your work such that it prejudices your reputation.

So, people, the ball’s really on your court. You cannot change the agreement you signed retrospectively by putting up status updates on your copyright. If you value your creativity to the extent that you sign Confidential Agreements to every second party, then FB is not right for you.

Or, you wait till the policy change. Many times, FB allows public to put forward their opinions before implementing new policies, maybe you can participate in such polls.

You may delete the account, but that doesn’t really make much sense since FB says it retains the data for reasonable period of time even after the account is deleted.

Or the best simple solution, don't post! ;) :D

So, here I shed some light. Don’t fall for such hoax.

Also, a nice little piece I found on this topic can be read here.

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