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In 2014, the Union Fédérale des Consommateurs – Que Choisir (“UFC”) (a French Consumer Association) applied to the Tribunal de Grande Instance of Paris for an order that various provisions of Twitter’s terms and conditions be declared void. In particular, the UFC challenged the licence of users’ copyright to Twitter. The decision was handed down in August this year.

Background

Twitter (and other social media platforms) typically seek broad licences of both existing copyright (ie text, images and video that the user already owns when they sign up to the service that they then upload to the platform) and future copyright (ie content that they create and upload after they sign up). If future copyright cannot be licensed to the social media platform (Twitter in this case), it is at least arguable that other users and the social media platform itself have no right to use those copyright works on the platform, including, in particular, through sharing and re-tweeting posts.

Are Twitter users consumers?

Twitter challenged the UFC’s right to bring the claim on behalf of consumers on the basis that Twitter users are not “consumers” as they do not pay for the service. The court disagreed, finding that users are consumers as they “pay” for the service with their personal and other data, meaning that the UFC was entitled to bring the complaint on behalf of consumers. This finding fits with the increasing push in Europe towards personal data being considered an asset owned by the data subject that is theirs to control (see, for example, the GDPR and the Article 20 data portability principle), but has potentially far-reaching implications for data-driven platforms.

Is the copyright licence valid?

French law is in many respects much more protective of authors of copyright works (or “droit d’auteur”) than is the case in many other, particularly common law, jurisdictions. The French Code de la propriété intellectuelle (Intellectual Property Code, or “IPC”) contains several provisions that affect the validity of transfers of copyright. These include prohibiting transfers of the rights in future copyright works (IPC Article 131-1: “La cession globale des oeuvres futures est nulle” – in English: “total transfer of future works shall be null and void”) and requiring that the terms of a transfer be set out very clearly and separately (IPC Article 131-3). Blanket assignments of present and future copyright, which are the common practice on many social media platforms, are typically unlawful.

The French court agreed with the UFC and declared that the Twitter copyright provisions were unlawful. In particular, the court found that the licence was so wide that it constituted a “total transfer” of future works. The court was particularly concerned at the imbalance of the rights and obligations of the users and Twitter.

While French law does not use the terms “assignments” and “licences” in quite the same way as English common law jurisdictions do, this finding is perhaps a little surprising. The word “total” (or “global”) suggests a complete transfer to the transferee. Indeed, other translations of the word “cession” are “surrender” and “disposal”, so the word is much closer to the English word “assignment” as it involves the ending of the author’s rights to exploit the work in question. However, in the case of social media platforms such as Twitter, the user remains able to use their content themselves, which suggests that their rights have not been completely transferred. Nevertheless, the court found that Article 131-1 applied and also found that the licence lacked the detail required by Article 131-3 of the IPC, meaning that the licence was invalid. Twitter must therefore come up with a new way of securing the licence it needs, and may have to do so by seeking a much more restricted licence and making its terms much clearer to its users.

What about other jurisdictions?

This decision is solely based on French law and does not have any binding effect on any other jurisdictions. There is no EU-wide harmonisation of the terms on which individuals can licence their copyright.

In the UK, section 90 of the Copyright, Designs and Patents Act 1988 provides that copyright can be assigned in whole or in part provided it is in writing and signed (which will include agreeing electronically). Assignments of future copyright are permitted under section 91, subject to certain requirements; licences falling short of an assignment of future copyright are generally valid.

So, to adopt a French phrase, the UK position is generally much more laissez faire, leaving consumers and platforms to agree terms. While there are certain protections for consumers (particularly those relating to unfair contract terms as contained in the Unfair Contract Terms Act 1977), users of social media platforms do not currently have any clear grounds on which to challenge the licence if they wanted to. As things stand, Twitter, Facebook and Instagram have significant rights to use British users’ content for their own purposes.

 


 

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