Currently, it is estimated that there are about three billion people worldwide using social media. The ability to post content is the main attraction of social media, and generally, social media sites rely on contents created by users to drive its sustenance.

Statistics show that about 1.56 billion people log unto Facebook daily out of which about 1billion make posts daily. That is a billion users who subject their post to possible usage by other users. With this ability to share posts at the click of a button, it is easy to write a beautiful article on Facebook and in few minutes the post goes viral without the author’s express consent.  Indeed new businesses have emerged in social media that sell the content of social media users, not directly, but by using these content to generate traffic of followership which in-turn makes their handle an asset of value driving profit.

The issues highlighted above are but a few ways social media continues to stretch copyright laws, revealing more significant imperfections in the system of protection afforded by social media usage, despite the proclamation of protection which is sometimes difficult to practically observe or explain. This article considers the copyright protection of social media post, with introspect on the Nigerian copyrights regime.

It is worrying, though not very surprising, that despite about 12 years of active social media presence globally, there is yet to be any concrete law or enforceable regulations regarding sharing of social media posts by other users. Several factors contribute to this “lack of cover” in the “socio-space” with few answers. Some of this questions are the question of whom to sue due to the difficulty in identifying the infringer; where to sue, particularly in cross-border/territorial actions and applicable laws, the difficulty in recognizing the actual author of a post etc.

These lingering questions have led some to conclude that there is no copyright in a social media post, or to put it differently, you lose your copyright in any work the day you voluntarily publish it online. This assumption is however not generally correct.

Is there copyright in a social media post?

In the absence of extant regulations on social media sharing, protection of social media posts depends largely on the extant copyright laws, which differ according to jurisdiction. One significant question to be verified is whether there is copyright in a social media post. A consideration of the Nigerian Copyright Act Chapter 68, Laws of the Federation 1990 leads us to query the following:

Is the post eligible for copyright? Section 1 of the Copyright Act states that literary works; musical works; artistic works, cinematograph works etc. are all eligible for copyright protection. However, to be eligible these works must have sufficient effort expended in their making to give them an original character; and must have been fixed in any definite medium of expression from which they can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device. Without laboring on a voyage of analysis, the summary is that by this provision, a social media post (whether text or picture) is eligible for copyright protection.

According to Ryan Vacca, a professor at the University Of New Hampshire School Of Law and a member of the school’s Franklin Pierce Center for Intellectual Property,  “if you download an image and post it, whether it be on your site, in a blog post, or on social media, you’re likely committing copyright infringement. Copying any images or user-generated content without the creator’s permission can constitute infringement… Once it’s posted on social media and the like, it doesn’t lose protection – it still has copyright protection.”

When will a social media post be copyrighted under the Act? A social media post though generally eligible for copyright under the Act will not be conferred with copyright unless, amongst others, if the maker of the work is an individual who is a citizen of, or is domiciled in Nigeria or the work is made in Nigeria (Section 2 and Section 3 of the Act)

Therefore a social media post by a Nigerian on Facebook is eligible for protection under the Nigerian Copyrights Act.

Is the copyright in social media posts against copying?

As highlighted before, there are no rules expressly against copying a person’s social media post, but there are provisions in the Copyright Act which implies that the abrogation of such acts is intended by the law:

Section 5 of the Act provides that copyright confers the exclusive right to control doing in Nigeria of any of the following acts in relation to a copyright work: to reproduce the work or any material form of it;  to publish the work; to perform the work in public; produce, reproduce, perform or publish any translation of the work etc.  Section 14 of the Act adds that copyright is infringed by any person who without the license or authorization of the owner of the copyright does, or cause any other person to do any of the above acts.

It is important to emphasize here that the protection afforded under the Act only grants protection to prevent violation in Nigeria. Therefore, the Act will not prevent violation in the U.S, as such violation cannot be said to have been “done in Nigeria”. This is one of the challenges highlighted above, as enjoying copyright protection in a foreign jurisdiction requires special procedure and registration.

Who is responsible for violation?

In the event that copyright in a social media post is violated who is responsible: the site or the infringing user?

On this, it is important to consider the terms of each social media site.  It is noteworthy that social media sites generally do not claim or own copyrighted works posted on their site, rather, users sign an agreement that gives the site a license to use the work without payment. This protection for social media sites is captured differently but has the same implication:

Twitter for instance states that “You retain your rights to any Content you submit, post or display on or through the Services. 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)”

Facebook has similar terms which state that you own “all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings.” In addition, for content protected by intellectual property rights that “you grant us (Facebook) a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License)”.

These terms are compulsory terms which you must accept before you are registered to use these platforms.

While the terms of usage protect the sites from law suits against copyright infringement, they do not protect other users. Agence France-Presse and Getty Images found this out the hard way in 2013.

Daniel Morel, a free-lance photographer in Haiti, took photos after the 2010 earthquake that killed more than 250,000 people. He posted the photos on twitter and an editor at AFP discovered Morel’s photos through another Twitter user’s account and provided them to Getty. The photos were then widely disseminated to Getty’s clients, including several television networks and the Washington Post.

Morel accused AFP and Getty of improper use, then AFP sued him seeking a declaration that it had not infringed his rights. Morel counterclaimed. AFP had initially argued that Twitter’s terms of service permitted the use of the photos. The Court view that though Twitter’s policies allowed posting and “retweeting” of images, it did not grant the right to use them commercially. Consequently, AFP and Getty were ordered to pay $1.2 million to the freelance photojournalist.

When is it fair to infringe?

As clearly seen from the AFP case, while the retweeting of images on twitter may, on its own, not be actionable infringement of Morel’s photos, commercializing the violation was actionable. This brings to fore a defence in copyright violation of social media content: the defence of fair dealing or usage.

The third schedule of the Nigerian Copyright Act, states that the doing of any acts, which ordinarily amount to copyright infringement, by way of fair dealing for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that, if the use is public, it is accompanied by an acknowledgement of the title of the work and its authorship will not amount to infringement.

The provision of the above schedule would ordinarily be a defence to most social media sharing and reposting of copyright works as it would seem easy to claim any of the above uses. However, this is more arguable, when commercial benefit is derived from an apparent infringement. For instance, where a blog utilizing posts of social media users to create its own content put its handle over such photos or videos and as a result gains followers which it then derives commercial benefit from, violation may be implied.

The Courts in reviewing a fair use would consider four primary factors: The purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion taken; and the effect of the use upon the potential market.

Indeed the fact that Facebook and Twitter expressly request a permission to use the copyrighted post of its users is an acknowledgement that there is copyright in such post.

In Conclusion

The ability to adequately protect copyright in social media posts is one of the many areas where technology has moved faster than the law. Social media gives users the ability to share content instantly and this comes with its attendant copyright issues. While it is clear that copyright exists in social media posts, there is an atmosphere of uncertainty in the areas of protection and enforcement, largely due to the dearth of case law on social-media related copyright.

It is however always better to, where possible, ensure that consent of the author of a work is sought and obtained before publishing the social media content of someone else. According to Rory Kay, a U.S based IP Lawyer, “If a user cannot determine the authorship of content, then he or she should not use it. If the user can identify the author, then it’s necessary to contact them and ask for permission to share content…The golden rule is simple: if the content was offline rather than online, would you seek out permission to use it? If so, you must do so online just as you would offline.”

Oliver Omoredia, Legal Practitioner, 08100193573, This email address is being protected from spambots. You need JavaScript enabled to view it.