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Have you seen Steve Martin’s Tweets (@SteveMartinToGo)?  They reflect his celebrated dry humour and, some say, bring comedy to a whole new genre (ie 140 characters or less).  Certainly, his 1.8 million followers think he is onto something, and no doubt encouraged by this, Steve is soon to publish his tweets in a book.  Meanwhile, Miss Universe India 2011, Vasuki Sunkavalli, has recently been found “twagiarising”: ie plagiarising someone else’s Twitter posts (see news report here).

These scenarios jointly raise important questions about the scope for copyright protection of tweets and twitter feeds.

De minimis and originality

The fundamental copyright question is whether a 140 character tweet can be considered an "original literary work" that will receive copyright protection under the Copyright Act 1968.  Under Australian copyright law, not every piece of printing or writing which conveys information will be protected by copyright (IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458; [2009] HCA 14).

Consider whether the following tweets can be protected by copyright  (with thanks to Steve Martin):

The problem is that the 140 character limit puts these tweets into de minimis territory, meaning that they may be too "insubstantial" to qualify for copyright protection.  Copyright can only subsist in a "work" and will not usually subsist in words or a single phrase.  So too, the work must be "original" by demonstrating a degree of independent intellectual effort (which is hard to establish when only a few words are involved).

With this in mind, Steve’s first tweet does, of course, display intellectual effort.  It’s designed to amuse.  In contrast, his second tweet is a factual sentence.  Neither are very long, and the question is whether this matters.

In Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984; [2010] FCA 984 (see our previous blog post here), Bennett J considered the issue in some detail, and found that copyright did not subsist in a number of newspaper headlines.  Although many original words and phrases may be considered "literary", to be protected by copyright they must be able to be considered a "work".  The writing in the headlines did not qualitatively or quantitatively justify their description as a literary "work", absent further evidence.  A headline is generally no more than a combination of common English words and the headlines in question were in the majority simply short factual statements of the subject matter of the article.  Bennett J noted that her reasoning did not exclude the possibility of establishing a basis for copyright protection of an individual headline.  However, Fairfax media had failed to prove that copyright subsisted in the particular headlines in that case.

The Fairfax case reflects the Australian position, which differs from the approach in some other jurisdictions.  This only increases the degree of difficulty given that Twitter is a global phenomenon.

Twitter feeds and the Twitter "novel"

Turning now to Steve Martin’s proposed book, whose proceeds will go to charity.  This book is likely to be protected by copyright because it is a compilation of his tweets.  Copyright will subsist in compilations where they require sufficient intellectual effort to produce the work, such as the selection and arrangement of the material.

But what about a Twitter feed or a twitter novel? It is possible that the author’s Twitter feed, rather than the individual tweet, may be seen to be the "work".  If multiple tweets are considered together, this may avoid the de minimis problem and copyright could subsist in the resulting Twitter feed.  For example, Steve Martin ran a series of posts on Gadhafi:

If the Twitter feed, rather than an individual tweet is protected by copyright, has Miss Universe infringed copyright by copying an individual post? This may not be sufficient to constitute copyright infringement of the twitter feed.  However, considering that Miss Universe India is said to have copied a series of posts (not from Steve Martin though!), it is possible this might be regarded as sufficiently substantial to infringe.

Retweets, replies, mentions and hashtags

Using Steve Martin again as an example, if any blog readers are unfamiliar with Twitter:

• Twitter’s "retweet" function allows users to re-post another person’s tweet.  The original post will appear on the second user’s Twitter feed, beginning with the original tweeter’s @username followed by the content of the original post.

• The reply function allows a user to reply to another tweet and a mention allows a Twitter user to "mention" another user in one of their tweets.  They will begin with or contain the other tweeter’s @username.  The reply or mention will appear in the tweeters’ feed and can be searched for using @username. 

 

• A #hashtag is used to discuss a keyword or topic on Twitter.  The post will appear in the tweeter’s feed and can be searched for using the #hashtag.

 

Provided that copyright subsists in a particular tweet, under the Twitter terms of service, the person who posted that content will own the copyright in what they submit, post or display on Twitter.  Additionally, Twitter users have granted to Twitter a "worldwide, non-exclusive, royalty free licence (with the right to sub-licence) to use, copy, process, adapt, modify, publish, transmit, display and distribute the content".  There do not appear to be specific Twitter copyright terms or sub-licences relating to re-tweets, replies, mentions or hashtags.  Twitter’s policies do mention that under the Digital Millennium Copyright Act, it will remove allegedly infringing material upon notice from the copyright owner (see here).

Would a re-tweet be copyright infringement?  Given that the re-tweet is part and parcel of Twitter functionality, it may be implied that anyone who posts a tweet also grants an implied licence to re-tweet (provided of course that Twitter etiquette is followed).  Twitter’s attribution policy states users may share content using a re-tweet, and suggests that posts should only be used with attribution.  There may therefore be a sub-licence to re-tweet granted by Twitter to other Twitter users.

The external publication of replies, mentions and hashtags are more complicated.  It has become common practice to use Twitter mentions and hashtags externally.  Steve Martin’s book of tweets will also publish responses to his posts from his twitter followers.  Similarly, the ABC’s Q&A broadcasts #QandA posts during the program.  Many websites display feeds that contain their twitter posts, replies and mentions.  Under the terms of service, these posts are owned by the original user that posted them. 

It might be argued that based on standard practice, by including the @username or #hashtag in a post, the person posting grants an implied licence to use the tweet.  Steve Martin’s mention of @AlecBaldwin may give Alec an implied licence to use the tweet.  In the case of the ABC Q&A program, Twitter users are invited to use the #QandA hashtag in order to be included as part of the broadcast. 

The terms of service do not mention a sub-licence or copyright in this context, Twitter does have Guidelines for the Use of Tweets in Broadcast or Offline Media.  These include use of the Twitter logo, use of the full text of the tweet and the attribution of the Twitter username.  "Broadcast" includes the exhibition, distribution, reproduction, public performance or public display of Tweets by any and all means of media delivery.  It could be argued that these guidelines create an sub-licence to re-publish mentions and hashtags outside the context of Twitter, provided the guidelines are complied with?  Yet, the Guidelines do not explicitly mention a licence and also mention the possibility of having a "prior agreement with Twitter". 

The constantly evolving uses of social media have potentially raised currently unanswered copyright questions.  It may be a long time before such questions are resolved. 

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