By using or accessing the Facebook website and its services users have to agree to comply with a Statement of Rights and Responsibilities (SRR) set up by Facebook.
Under the SRR each user who shares content via Facebook that is covered by intellectual property rights like photos and videos (the so called ‘IP content’) gives a specific permission and grants Facebook with a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any of the aforesaid content. Despite the given license, users retain ownership over their copyright protected works. Furthermore, since the granted license is non-exclusive users retain the right to use and exploit their copyright protected content in any way they deem suitable (e.g. grant licences to parties other than Facebook).
The license agreement with Facebook can be terminated any time by the user by deletion of the intellectual property (IP) content or his/her account. However, what has to be borne in mind is that the content might have been shared with third parties which might not have deleted it. Furthermore, Facebook specifies that removed content may also persist in backup copies, retained on the company’s servers for a period of time defined by Facebook as ‘reasonable’ but lacking any specific time constraints. During this period, the content will not be available for anyone different from Facebook itself.
By agreeing with the SRR users also give their permission for Facebook to use their name, profile picture, content, and information in connection with commercial, sponsored, or related content (such as Facebook likes). What this means is that users permit Facebook to sell other entities or businesses their name and/or profile picture, content or information, waiving their right to demand any compensation in their favour. Nonetheless, Facebook declares that it respects the user’s audience preferences, if such are made, and uses the relevant information in accordance with the choice made. Accordingly, if you consider that your photo or video Facebook content should be accessible to a limited audience only, it is advisable to amend the privacy settings of your account to avoid as close as possible the ‘public’ character of your activity.
Finally, Facebook also guarantees it will not give content or information to advertisers without the prior consent of the user.
The world-wide license imposed by Facebook raises many questions as regards its compliance with national copyright legislations across different national jurisdictions. At the time of establishment of this article, the current acquis communautaire of the EU does not provide a harmonisation between the legislation of Member States regarding copyright contracts (such as Facebook’s IP license). This has led to a patchwork of national laws, some of which set forth various imperative rules that might come in contradiction with the Terms and Conditions, set up by Facebook. In example, the Belgian Code on Economic Law which codifies copyright contracts in general sets forth that all copyright contracts should be in writing in pursuit of evidentiary purposes. A similar limitation is prescribed by Article 16 of the Bulgarian Copyright and Related Rights Act (CRRA) which prohibits any kind of contractual transfer of the author’s moral rights. The CRRA also sets forth that a contract on the use of a work may be concluded for no more than ten years, regardless of the contractual parties’ will. The imperative nature of such national rules might render all contradicting contractual agreements, or parts thereof, such as Facebook’s IP license null and void. This has the potential to create a lack of valid contractual basis for the transfer of copyright which might give rise to liability for copyright infringement when the work is used by Facebook. What’s more, it may be assumed that Facebook users are prone to protect their intellectual property rights and are hesitant to grant such a broad license to Facebook or, at least, that they would normally not have agreed to such overly broad terms if they would have negotiated an agreement with Facebook on an individual basis. In this sense, Facebook’s IP license rights can be significantly curbed and should be read against the specific national copyright provisions, adopted by Member States.
In principle, the economic rights of a copyright holder reserve acts such as copying, distribution, communication to the public, transmission through cable or wireless means, etc. to the author or the holder of a neighbouring right only. However, Article 5 of Directive 2001/29/EC (InfoSoc Directive) sets forth that in certain cases reproduction and distribution of a copyright protected work will not infringe the exclusive rights of the right holder if the use is covered under the ‘exceptions or limitations’ of copyright law. The exhaustive list of exceptions and limitations serves as a safeguard for creativity, free speech and education when those fundamental values need counterbalancing against copyright. Article 5 (1) provides for only one specific limitation which should be mandatorily transposed in the national legislation of all Member States. Paragraphs 2 and 3 of the same Article provide for 15 additional optional limitations which Member States are given the choice whether to adopt in their internal copyright legal provisions or not.
The only mandatory limitation to copyright is ensured in cases of temporary acts of reproduction of the copyright work which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable:
oa transmission in a network between third parties by an intermediary, or
oa lawful use
of a work or other subject-matter, and which have no independent economic significance. Actions which meet the requirements of the provision shall be exempted from the exclusivity for reproduction of the copyright holder.
Some of the other limitations to copyright, set forth in the Directive include reproducing works for private use where the private copy is used for neither directly nor indirectly commercial purposes; reproduction made by public libraries, educational establishments, museums; use for the purpose of illustration for teaching or scientific research; uses, for the benefit of people with a disability; uses for the purpose of caricature, parody or pastiche and many others. The majority of the exceptions and limitations require the use to be of non-commercial nature in order to be freed from authorization or compensation to the right holder.
Apart from the numerous exceptions and limitations enumerated in Article 5, the Directive introduces a basis to be followed by Member States when adopting exceptions and limitations to copyright in their national legislation. The so called ‘three-step-test’ formulated in Article 5 (5) sets forth that all limitations and exceptions adopted by Member States shall only apply in:
- ‘certain special cases’ meaning that each exception must be clearly defined and precise in scope by the national copyright provisions;
- which ‘do not conflict with the normal exploitation of the work or other subject-matter’, and
- which ‘do not unreasonably prejudice the legitimate interests of the right holder’ meaning that a stronger general interest must be prevailing over the exclusive rights of the copyright holder.