By: Indira García Calles

Can our posts on social media be protected by Copyright?

Nowadays, there are few people who are not linked, in some way, to social media. We communicate breaking news, share pictures and quotes, interact with our followers (in case of Twitter and Instagram) or with our friends (Facebook). Therefore, it is inevitable to wonder: Can our posts on social media be protected by Copyright? And, can users claim these rights and demand respect of third parties? The answer, as in the case any right, is: it depends.

José Luis Fariñas [1] explains that we have to take into consideration two situations:

If the shared content belongs to the user, he needs no permission to share it – whether the content is a poem, lyrics, article on a blog or a comedy video (as Germán Garmendia´s [2] or Werevertumorro’s [3] videos); or
If the content is not produced by the user, the contents shared with the author’s consent, or, on the contrary, it is shared without the author’s consent and/or awareness.

In this case where content is used without consent, it is an illegal act, since Venezuela’s Laws on Copyright (Article 23 and 42 of the Venezuelan Law on Copyright) and the Constitution (Article 93) set forth the protection of author’s rights regarding his works and his authority to freely manage such rights and grant to third parties rights of exploitation.

The significance of this right is that it determines the legality of actions carried out by the user who shares such contents on social media.

If we post any content on social media, for example, Facebook, Twitter or Tumblr, in order to determine if it could be subject to Copyright, we have to take the [4] part test below:

The post has to be original; this means, the result of creation and creativity of the author. Therefore, this could be different from any other work of the same type. Likewise, we have to take into account the concept of “Scenes à faire” [5], which is based on the concept that there are essential and necessary elements to describe a specific fact. For example: “The sky is blue” is different than saying “Blue color of that far hill, where my thoughts fly with the mountain peace, a color that many times have shown myself!” [6]. The last description would be protected by Copyright, but not the first one.
The post should not be a reference to specific facts, news or people.
Content that can be posted or shared by any kind of media or procedure. In this particular case, this requirement is fulfilled before determining if the post could be subject to Copyright, since, if it was not posted first, there would not be awareness of such work and doubts about if it could be subject to protection by means of this right.

For example, an account on Twitter that fulfills all these requirements is @microcuentos [7], where users create short stories that can be published with 140 characters only. Another interesting case is if the user posts a story in several tweets, their collection also complies the requirements for Copyright protection.

Therefore, not all our posts in social media could be subject to protection by Copyright. Only those that are original and cannot be created by another person.

After the post on social media has compiled all abovementioned requirements, automatically the author becomes the owner of the following rights of his work: moral rights (authorship, disclosure and concealment, integrity and amendment rights) and proprietary or exploitation rights (reproduction [8] and public communication [9]).

As a response of our first questions, social media is not a free zone where rights do not apply, even when many people like to see it in that way. Our posts can have an artistic or literary value; however, they will have copyrights if they meet all requirements mentioned.

Sources:

Background vector created by Freepik
[1] Fariñas, José Luis. “El Derecho de Autor en las redes sociales”.Available at: http://www.ipclick.com.ve/wp-content/uploads/2015/08/El-Derecho-de-Autor-en-las-Redes-Sociales.pdf. Consultation date: 08/05/2016.
[2] https://www.youtube.com/user/HolaSoyGerman
[3] https://www.youtube.com/user/werevertumorro
[4] Antequera Parilli, Ricardo. “El derecho de autor y los derechos conexos en la legislación venezolana” At: Legislación sobre derecho de autor y derechos conexos. Caracas. 1999. pp. 12-13.
[5] Hoffman, Ivan. “Scenes a faire under copyright law”. Available at: http://www.ivanhoffman.com/scenes.html Consultation date: May 09 2016.
[6] Venezuelan poetess Cruz Salmerón Acosta’s Sonnet.
[7] https://twitter.com/microcuentos?lang=es
[8] If the post is a song, this can be reproduced in several copies (digital or physic). Article 41 of the Venezuelan Law on Copyright.
[9] If the post is a story: this can even be shown by a play, (in this case, the story has to be long enough) Article 40.1 of the Venezuelan La won Copyright.