Re-Tweeting Into Trouble

A few weeks ago, Keith Bell, the author of a sports psychology book titled ‘Winning isn’t normal’ instituted proceedings against Pennsylvania-based King’s College and its sports coach for copyright infringement. What is remarkable about this suit is that it claims the infringement arose from an act of re-tweeting. The original tweet, containing photos  (which is arguably copyrightable content) of certain pages of Bell’s book  had been posted by a different user, the Northeastern State University Baseball team.

Twitter has general policies in place to cover issues of copyright infringement, trademark infringement, sale of counterfeit goods, impersonation (affecting personality rights), and privacy. When tweets are reported, Twitter has the ability to take several actions including taking down the content, restricting access to the content, suspending (or even terminating) an infringing user’s account, and in some cases, even disclosing the name/user information to the complaining account holder.

What is interesting is that the overall focus of these policies is clearly on tweets, and not on re-tweets. However, when right holders invoke any of these policies, any action Twitter takes against a tweet will affect all re-tweets as well. For instance, Keith Bell had invoked the copyright policy to get the original tweet taken down; the re-tweet against which he has filed this suit were also automatically taken down. Of course, none of the reliefs available to right holders via Twitter’s policies prejudices their claims before courts.

Two Issues

The Bell suit raises several fascinating questions. In this post, I seek to briefly deal with two specific issues: one, are 140-character long tweets capable of copyright protection as ‘original literary works’ in the first place? Two, if yes (and subject to applicable defences) can re-tweeters, who are separated from the primary act of infringement, be held liable?

Broadly, the answer to the first question appears to be in the affirmative in most jurisdictions. In the EU, the Court of Justice has consistently held that even short sentences (therefore including tweets) are capable of copyright protection if they reflect the “author’s own intellectual creation”.[1] In the US, as discussed by IPKat (here and here), while short phrases, names, titles etc. are not protected, a tweet comprising of a complete sentence or a brief statement may be. In India, for a tweet to be copyrighted, the originality standard laid down in EBC v. D.B. Modak would need to be met i.e. the standard in between ‘sweat of the brow’ and ‘modicum of creativity’. Arguably, a tweet that is “different in character, involve[s] some intellectual effort, and involve[s] a certain degree of creativity”[2] would be protected.

The second and harder question is whether re-tweeters can be held liable or not. The Court of Justice of the EU has held that hyperlinks which link viewers to infringing content would, subject to certain knowledge requirements on the part of the hyperlinker, amount to communication to the public. In the absence of right-holder consent, it would accordingly amount to copyright infringement (previously covered here). This ruling is therefore certainly capable of covering re-tweets of infringing content.

Under the US Copyright Act, re-tweets would similarly amount to direct infringement as there is reproduction and display of the copyrighted work. More interestingly, it could potentially fall under contributory copyright infringement as well. In 2015, a beverage company was sued for tweeting a slightly tweaked version of a copyrighted photograph to promote its product. The photographer, who held all rights in the photograph, had claimed, inter alia, that the company had committed contributory copyright infringement since it had effectively licensed the image to Twitter, under the site’s terms of service. He had also sued several John Does for contributory infringement for re-tweeting or otherwise sharing the photograph. The case was eventually settled out of court, leaving the question of contributory infringement by re-tweeters unfortunately open.

In India, I see the immediate infringement under Section 51(a)(i) of two rights granted under Section 14(a) of the Copyright Act, 1957 – one, the right to reproduce the work, and two, the right to communicate a work to the public. With respect to the right to reproduce a work, a re-tweet does not merely provide a link to the original tweet; it also reproduces the content of the original tweet. Therefore, where an original tweet reproduces copyrighted content, someone who re-tweets it would be equally liable. This would also amount to a direct communication to the public under Section 2(ff). It is not clear whether the broad EU position on hyperlinks would be followed in India or not; if yes, then a re-tweet of an original tweet that provides links to infringing content would also amount to infringement.

Conclusion

So far in India, retweeting has not yet popped up in the IP sphere. However, in a fascinating coincidence, around the same time as the Bell suit was instituted, the Delhi High Court refused to quash a defamation case against AAP Spokesperson Raghav Chadha, who re-tweeted an allegedly defamatory tweet against Arun Jaitley. The Section 482 petition had been precisely on the grounds that a re-tweet cannot amount to a defamatory statement, and that only the author of the original tweet can be held accountable. Unfortunately for Mr. Chadha, the Delhi High Court was not persuaded. This refusal to quash opens up the Pandora’s box worth of questions on potential liability for re-tweeting. We, on this blog, will be closely following all IP and related developments on this front.

[1] See: Infopaq (C-5/08), BSA (C-393/09), FAPL (C‑403/08 and C‑429/08); Painer (C-145/10); Football Dataco (C-604/10); SAS (C-406/10)

[2] The Chancellor Masters and Scholars of the University of Oxford v. Narendera Publishing House, 185 (2011) DLT 346