In 2014, Mark Zuckerberg reportedly stated that “in five years, most of [Facebook] will be video”. You only need to look at your Facebook newsfeed to see that it is becoming dominated with users sharing, and tagging each other in, video posts. A further example of this move towards video can be seen in Facebook’s September 2017 launch of its own video platform (in the US for now) called ‘Watch’. The prevalence of video on Facebook means that it is more likely that there will be videos posted on the social media giant that potentially infringe copyright (e.g. by the unauthorised inclusion of a song) and it would be more time consuming and expensive for rights holders to find and try to stop infringements.

Facebook’s Potential Solutions

Companies that allow users to upload content to their website (e.g. Facebook) often have a takedown notice and procedure that rights holders can use to notify them of infringements. In addition, such companies often set out in their terms that users cannot post content infringing a third party’s rights and outlining what action the company can take for breaches (e.g. it can remove such content at its discretion and it can suspend the accounts of repeat offenders).

Reportedly, Facebook has been working on a solution whereby it will be able to locate videos containing music that infringes the copyright of record labels and music publishers. However, as this could take two years to develop, Facebook apparently has approached record labels and music publishers to try to agree a licence so that all its users will have permission to upload videos containing songs of certain records labels and music publishers.

Legal Background

It will infringe the various types of copyright subsisting in a song to copy the whole or a substantial part without the permission of the copyright owner. Therefore, even using a short excerpt of a song without permission can constitute copyright infringement if it is deemed to copy a ‘substantial’ part. Substantial is judged in terms of quality (what was copied) rather than quantity (how much was copied). As an example, Facebook could potentially become liable (as a secondary infringer) if it has certain knowledge of the infringement on its platform. This would not be an issue if Facebook obtained a licence for its users to upload music to its platform.

Perhaps recognising the arduous task of internet companies checking everything uploaded to their platforms, there is (among others) a hosting defence in the EU for information society service providers (ISSP). This means (in brief) that an ISSP is not liable if it does not have actual knowledge of the unlawful activity and, if it obtains such knowledge, it acts expeditiously to remove/disable access. Therefore, the take down notice procedure allows rights holders to notify Facebook and they then need to act quickly to remove the infringement.

If you would like advice or further information on copyright then please do not hesitate to contact Briffa.

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