You may have seen the Facebook post that went viral over the last week or so, supposedly invoking copyright protection over everything you've ever uploaded to Facebook. There were similar posts on privacy rights going around earlier this year when Facebook was floated on the stock market.
As you may have realised, the post does not mean very much. There has been a lot of reporting on this, but we thought it would be a good idea to go through the post and break it down to show you why it lacks any real legal significance.
In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, literary works, professional photos, videos, etc. (as a result of the Berner Convention)
Apart from a few inaccuracies, this first statement is not really wrong, just redundant. Yes, you do own the copyright in your photos, videos, and any other copyright works that you might post. This is explicitly stated in Facebook's Statement of Rights and Responsibilities, which forms part of the terms and conditions that you agree to when you sign up for your Facebook account:
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.
Copyright is a protection that comes into existence with the creation of certain types of work (for example, literary works and artistic works). In Australia, it is implemented under the Copyright Act 1968 (Cth). Automatic protection of copyright works is one of the key requirements of the Berne Convention (yes, it's the Berne Convention, not Berner). Over 160 countries (including Australia and the United States) are signatories to the Berne Convention, which was one of the first international agreements on copyright. Now its provisions are also binding on member States of the WTO by reason of the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement. Consequently, there is no need to register anything, or 'declare' anything, in order to obtain copyright protection for your copyright works.
However, not all the information that you put on Facebook will constitute a copyright work. For something to be a copyright work, it must be 'original'. Facts and information are not 'original' enough to be protected by copyright (see, for example, IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14 and Tonnex International Pty Ltd v Dynamic Supplies Pty Ltd [2012] FCAFC 162). This means that you can't claim copyright over the personal details that you put up on Facebook, like your date of birth or your email address. What rights you may have in relation to that kind of information is a privacy issue, not a copyright one.
For commercial use of the above, my written consent is needed at all times!
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.
When you sign up to Facebook, you accept the terms contained in its Statement of Rights and Responsibilities. If you don't accept the terms, you simply don't not get an account. If you do accept the terms, you have a contract with Facebook. What you've agreed to under that contract, in relation to Facebook's use of your content, can be found in section 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 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. [emphasis added]
The buzz words here are transferrable, sub-licensable and royalty-free. What this means is that when you sign up, you give Facebook the right to use any of the content that you post at any time throughout the world, as well as giving it the right to allow others to use that information for free and without any further consent from you. Unfortunately, unless you can renegotiate your contract with Facebook (which is extremely unlikely), the only way to stop Facebook from using your content is not to put it up there.
The content of this profile is private and confidential information.
There is certain information which will always be public on Facebook. This includes your name, profile pictures and cover photos, networks you are in, your gender, and your username and user ID. Facebook sets this out in its Data Use Policy, which also forms part of the terms and conditions you agree to when signing up. Even where you have used the strictest privacy settings for the rest of your information, Facebook can still use this information because, as already explained above, you have already consented to that use.
It is also questionable whether you would have any privacy rights that are enforceable against other parties unrelated to Facebook. Certainly in the United States there have been a number of cases where the courts have held that a user does not have a reasonable expectation of privacy in relation to information posted on social networking sites – see, for example, People v Harris (N.Y. Crim. Ct. June 30, 2012) in relation to the expectation of privacy in a tweet.
In Australia the courts have barely begun to scratch the surface in this area. But it is important to remember that in Australia you cannot sue someone for breach of privacy. The closest cause of action we have is breach of confidence. While courts have liberalised their approach to breach of confidence in recent years, there are still substantial hurdles that you would have to overcome in order to convince a court that the information you posted on Facebook was confidential information. For example, confidential information must have the required 'quality of confidence', and case law shows that information in the public domain will not satisfy this requirement.
The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute)
The first reference here is meant to be to sections 1-103 and 1-308 of the United States Uniform Commercial Code (UCC). The UCC has been adopted (with some local variations) in all 50 States in the United States. However, it deals with commercial law and contracts, not privacy.
Section 1-103 deals with how the UCC is to be interpreted. Section 1-308 is supposed to allow a party to a commercial transaction to accept the other side's ongoing performance without waiving a right which it might have to make a claim for breach of contract. Somehow this section has come to be seen by some in the US as a get-out-of-jail-free card, with people citing the section next to their signature and thinking that it will get them out of anything that they sign their name to. The only way section 1-308 could be of any use to you is if you were able to show that Facebook had breached your contract by using your information in a way that was contrary to its Statements of Rights and Responsibilities. Then you might be able to invoke it to preserve your right to sue for breach of contract while still continuing to use Facebook's services. However it is highly questionable whether expressing this reservation of rights in a Facebook post would be effective.
The reference to the Rome Statute is even more unhelpful. The Rome Statute is the international treaty that established the International Criminal Court (ICC). Under the Rome Statute, the ICC has jurisdiction to hear only the most serious international crimes. These are the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. Prosecuting Facebook for misuse of your information is not something that you'd be doing before the ICC under the Rome Statute.
Facebook is now an open capital entity. All members are recommended to publish a notice like this. 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.
Facebook's status as a publicly listed company, or an 'open capital entity', has no impact on your rights in relation to copyright or privacy. How Facebook uses your information continues to be governed by the Statement of Rights and Responsibilities and other terms and conditions that you agreed to when you signed up (as well as any amendments that Facebook may make from time to time).
Anyone reading this can copy this text and past it on their Facebook Wall; this will place them under protection of copyright laws.
As previously mentioned, copyright protection is automatically conferred when a copyright work is created. Therefore you are already protected by copyright law in relation to all of your copyright works on Facebook. Posting a statement on your wall to this effect is not necessary to invoke that protection.
