Every time I agree to terms and conditions or software licensing agreements without reading them, I spend a brief moment feeling guilty. As if I had just betrayed the profession that I am about to enter. In hindsight, perhaps I ought to have spent a bit longer to read them because there seems to be a lot that slipped by in Twitter’s Terms of Service.
Our friends at IPKat recently carried a post concerning a decision of a Paris Tribunal that considered the validity of Twitter’s Terms of Service (ToS). The tribunal struck down a large portion of the ToS as invalid under French law, including bits concerning intellectual property rights (for those who can read French, a copy of the judgment can be found here).
We took a look at the ToS and found that there is a good chance that they will succumb to contract law or copyright law in India. In this post, I will try to bring out the potential copyright-related issues.
Is Twitter’s licensing provision specific enough?
The ToS is a component of the User Agreement that forms a binding contract with each user. The clause on licensing, under Item 3 of the ToS raises several questions. It would be useful to reproduce it below before we discuss these issues:
“You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours — you own your Content (and your incorporated audio, photos and videos are considered part of the Content).
By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). This license authorizes us to make your Content available to the rest of the world and to let others do the same. You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such additional uses by Twitter, or other companies, organizations or individuals, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.”
It might come as a shock to many, that agreeing to Twitter’s ToS (and in fact most other social media, including Facebook, Instagram, Pinterest, LinkedIn, YouTube, SoundCloud) gives them a license to use any copyrightable content uploaded by their users, in practically any manner they deem fit. Ostensibly, this license is needed to allow Twitter to engage in routine sharing and redistributing of content uploaded by users on their platform, such as placing content on other people’s feeds, showing thumbnails on searches, allowing display pictures to be viewed by the public and other such activities. However, the licensing provision embodied in the terms of service seems to be much wider than necessary for such activities. For example, the license allows Twitter to reproduce the content without any restriction and also sub-license it on terms it deems fit.
According to Section 30A of the Copyright Act, even licensing of copyrights must be effected in conformity with the requirements (primarily, for assignment) laid down in Section 19. In France, similar requirements under the Intellectual Property Code (L131-1 to 3) state that a license must specify each right transferred, the scope of its utilisation and the purpose of its transfer. Twitter’s ToS fails to reach this degree of specificity, and was, therefore, several portions were held to be null and void by the Paris Tribunal.
However, under Section 19, the requirement in India is limited to the assignment being in writing, with the signature of the assignor, and furnished with details pertaining to the territoriality and duration of the assignment. The ToS mention all these details, barring duration. However, this defect is cured by sub-section 5 of Section 19, which states that in the absence of a time period in the agreement, an assignment is to last for 5 years. This would mean that Twitter’s rights over its users’ content are valid for 5 years from the time it was uploaded onto its platform. In this respect, therefore, the licensing provision is valid.
Can parties contract to assign rights to exploitation through mediums that are not in existence?
The clause also states that the assignment allows for exploitation through mediums that exist as on the date of uploading, and any medium developed in the future. This part of the clause is in direct conflict with the first proviso to Section 18, which states that assignments shall be made for exploitation only on mediums in existence at the time unless the particular non-existent medium is mentioned expressly.
The ToS simply states that exploitation shall be allowed on all mediums, existing and future. It does not mention any specific medium, and therefore fails to come within the exception mentioned in the proviso. This part of the clause would, therefore, be unenforceable in India.
Does assignment require consideration?
The ToS also explicitly states that no consideration will be offered by in exchange for the license to use the content uploaded by the users. This begs the question of whether royalty and consideration are necessary when transferring copyright in a work.
Prior to the 2012 amendment of the Copyright Act, Section 19(3) read:
“The assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties.”
The mention of “if any” clearly made the payment of consideration and royalty optional. However, the 2012 amendment removes this phrase from the provision:
“The assignment of copyright in any work shall also specify the amount of [royalty and any other consideration payable], to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties”
This would indicate that it was the Parliament’s intention to make payment of royalty and consideration mandatory. In the Standing Committee Report that discussed the amendments to Section 19 (paragraph 10.1 onwards) emphasises the importance of ensuring that authors have a right to royalty and consideration. This would indicate, therefore, that Twitter’s licensing of content, without paying any royalty or consideration is improper, and would render the assignment invalid. Further, this cannot be cured by arguing that access to Twitter’s services is the consideration, since “consideration in any other form” is a requirement to be met along with payment of royalty. Further, the wording of the ToS itself indicates that Twitter does not consider payment of consideration necessary at all.
Potential Moral Rights Hazard
There may also be a potential infringement of moral rights of the User. Item 3 under the ToS states:
“By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods […]
You understand that we may modify or adapt your Content as it is distributed, syndicated, published, or broadcast by us and our partners and/or make changes to your Content in order to adapt the Content to different media.”
The right to modify and adapt mentioned in the latter section of the provision is limited to fitting the content on different media and platforms. If acted on in this limited extent, it would be unlikely that a moral rights claim would be successful, since the author is required to prove prejudice to their honour and reputation under Section 57 (on the author’s special rights).
However, the right to adapt and modify, as mentioned in the initial part of the provision, is unqualified and absolute. As such, Twitter would have the right to bring about any changes to the work that they desire. If they do so, it is possible for authors to claim a moral rights violation under Section 57 of the Copyright Act, since it is an inalienable right that cannot be transferred by agreement.
Second, it is important for artists to consider whether they wish to use social media to promote their work. It would be practically impossible to sell work once it has been uploaded on Twitter. While budding artists may actually see a benefit in their work being infringed (and shared widely), artists concerned with the exclusivity of their work may prefer not using these platforms.
To Dr. John Watson, Sherlock Holmes would say that the best hiding place is in plain sight. And it would seem like Twitter and the lot are following this piece of advice quite successfully. With Zomato also significantly watering doing its Gold privileges recently, perhaps it is time we realise that consumers need to beware and be active.
Image from here.