Copyright on social media: the rules in practice

Service page: Digital commerce and AI lawyer: terms, privacy and direct mailing.

Three beliefs keep coming back on social media, and all of them are wrong: “I gave credit, so it’s fine”, “It’s sharing, not copying” and “It’s fair use”. Here is what the law says.

What is actually reserved for the author

Section 11 defines copyright as the exclusive right to do, in a work or in a substantial part of it, one of the acts it lists, and first among them is copying, under section 12, for all types of works. The list also includes publishing a work that has not been published, and public performance.

Section 12 defines copying as “making a copy of the work in any material form, including – (1) storing the work by electronic means or by any other technological means”. Saving a photo and uploading it again to your profile is copying in this sense, even if the button is called “Share”. The operator of a page or website that lets users upload content needs to deal with this themselves, and this is one of the purposes of website terms and privacy policies.

Credit: a separate duty, not a permission

This is the point people confuse most. Credit has nothing to do with a license. It is part of the moral right, which is a separate personal right. Section 45(a) gives the author of an artistic, dramatic, musical or literary work (except a computer program) a moral right for the term of the copyright.

“A moral right in relation to a work is the author’s right – (1) that their name be stated on their work to the extent and in the manner appropriate in the circumstances; (2) that no distortion or other change of form be made to their work and no damage done to it, and that no derogatory act be done in relation to that work…”Copyright Act, 5768-2007, section 46 — Nevo text (unofficial translation)

The conclusion is precise and not intuitive: a use without credit infringes two rights, the economic right and the moral right. A use with credit but without permission still infringes the economic right. Credit prevents one infringement, not both.

Fair use: a test, not a label

Section 19(a) permits fair use “for purposes such as these: private study, research, criticism, review, journalistic reporting, quotation, or instruction and examination by an educational institution”. Note the wording “such as these”: the list is open, but fitting one of the purposes is not enough.

Section 19(b) lists the factors weighed to decide whether a use is fair:

• the purpose and character of the use;
• the character of the work used;
• the scope of the use, in quality and quantity, in relation to the work as a whole;
• the effect of the use on the value of the work and on its potential market.

The third factor is especially central for content on social media. Using a short excerpt in order to criticize it is reasonable. Uploading the whole photo, with no critical context, when it is itself the entire content of the post, is not.

Derivative work: adaptation is not originality

Section 16 defines making a derivative work as “making an original work that is substantially based on another work, such as a translation or an adaptation”. The right to make a derivative work is reserved for the copyright owner. A translation, adaptation or remix of a song may fall within the definition (section 11(6)); and a dance video that plays the song involves, in any case, copying the song itself and making it available to the public (sections 11(1) and 11(5)).

Distributing without knowing: indirect infringement

Section 48 deals with someone who did not make the infringing copy but dealt in it. It provides that a person who does one of the acts it lists with an infringing copy (selling or renting, possession for a business purpose, distribution on a commercial scale, commercial display to the public, or import) infringes the copyright, if at the time of the act they knew or should have known that the copy is an infringing copy.

The knowledge element is the heart of the section. A business that shares other people’s content on its marketing channel is in exactly the position where the question “should you have known?” is asked.

The sanction, and the point that narrows it

Section 56(a): where copyright or a moral right was infringed, the court may award, for each infringement, compensation without proof of damage in an amount not exceeding NIS 100,000. Section 56(b) lists factors for setting the amount: the scope of the infringement, its duration, its severity, the actual damage, the profit the defendant made, and the defendant’s good faith.

Then comes section 56(c), which people tend to forget: “For the purpose of this section, infringements committed in a single course of conduct shall be treated as one infringement.” Someone who uploaded thirty photos by the same photographer in one campaign is not necessarily exposed to thirty times NIS 100,000.

And finally, evidence: section 64(1) sets a presumption that if a person’s name appears on the work, in the usual way, as its author, that person is the author. A signature or watermark on a photo is not decoration; it shifts the burden of proof.

Frequently asked questions

Who owns the copyright in a photo or video I upload to social media?

As a rule, they belong to whoever created them: the author is the first owner of the copyright in the work (section 33(1) of the Copyright Act, 5768-2007). There are two exceptions worth knowing: a work that an employee created for the purpose of their employment and in the course of it belongs to the employer, unless agreed otherwise (section 34); and a portrait or a photo of a family or private event made to order belongs to the person who ordered it, unless agreed otherwise (section 35(b)). What the platform may do with the content is set by its terms of use. The Act distinguishes between transferring the right or granting an exclusive license, which require a written document (section 37(c)), and a non-exclusive license (section 37(a)), so it is worth checking what exactly the terms grant.

Does giving credit make a use permitted?

No. Credit concerns the moral right: section 46(1) of the Copyright Act, 5768-2007, gives the author the right that their name be stated on their work. The economic right is separate: section 11(1) gives the author the exclusive right to copy. A use with credit but without permission still infringes the economic right.

Does re-sharing count as copying?

Section 12 of the Act defines copying as making a copy of the work in any material form, including storing the work by electronic means or by any other technological means. Saving a file and uploading it again falls within the definition.

What is fair use?

Section 19(a) permits fair use for purposes such as private study, research, criticism, review, journalistic reporting, quotation and instruction. Section 19(b) lists four factors for deciding whether a use is fair: the purpose and character of the use, the character of the work, the scope of the use in quality and quantity in relation to the work as a whole, and the effect of the use on the value of the work and on its potential market.

How much can you claim for an infringement?

Section 56(a) allows compensation without proof of damage in an amount not exceeding NIS 100,000 for each infringement. Section 56(c) qualifies this: infringements committed in a single course of conduct are treated as one infringement.