A cautionary tale of the rights you give away.
A few months ago, as I sat in a meeting that was increasing in tempo at a remarkable speed, one attendee at the meeting quipped, “intellectual property has no value”. As I heard this and started to explain to this person that for some business’ intellectual property is their entire asset base, it quickly hit me that if a businessperson seasoned in such transactions was struggling to understand the value in intellectual property, a reasonable person would likely be just as confounded by the concept.
Although some might deal daily with intellectual property, intellectual property rights, licences, trade marks, patents and inventions; for most, intellectual property (IP) is nothing more than an intangible concept. Even more difficult than not being able to always physically touch or hold IP, is trying to understand it when there are vast amounts of misinformation floating around.
For the average person with a Facebook account, every few months you might notice one of your friends make a post encouraging you to share a long paragraph of words that is alleged to stop Facebook taking away all your rights. Of course, your rights at law and the terms you signed up to when you created your account dictate your rights and obligations for use of your account.
So, what intellectual property rights do you have on Facebook?
As with most of your rights and obligations with Facebook, your IP rights are set out in Facebook’s aptly named Statement of Rights and Responsibilities (SRR).
Facebook’s SRR states that you own all the content and information that you publish on Facebook. In particular, for your photos and videos although you retain your copyright, you grant Facebook a non-exclusive, transferable, sub-licensable, royalty-free, worldwide licence to use any IP that you publish on Facebook. The licence continues for as long as you have a Facebook account or until you delete that content from Facebook.
By granting a licence, you are authorising Facebook to exercise some of the same rights as you, the copyright owner. This does not prevent you exercising your rights, it means that you are also allowing Facebook to use your IP.
Usually the owner of IP will be the creator of that work, or the individual that purchased the creator’s rights. The difference between what an owner can do with their IP and what a licence holder can do, depends on the terms of the licence.
Under Facebook’s SRR, you are giving Facebook the right to use the IP in your content published on Facebook and allowing Facebook to transfer their rights to someone else or allow a third party to use your IP the same way Facebook can use your IP. Facebook does not pay you for this right and can use your IP anywhere in the world. To licence is to grant Facebook some of the same rights you have. What Facebook does not gain, is the right to say that they created the work – only the creator can do this.
Watch your settings though – as anything you post on public is open for anyone to copy, not just your friends or Facebook!
You may have heard that Facebook bought out Instagram, does this mean your rights are the same?
Instagram’s Terms of Use have been subject to much more controversy than those of Facebook. This has resulted in Instagram changing the Terms over the past few years.
Similar to Facebook, Instagram presently acknowledges in its Terms of Use that it does not claim ownership over your content. You grant to Instagram, a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide licence to use the content that you post. The result is the same as under Facebook’s SRR.
What is my “content”?
The “content” referred to under Facebook’s SRR and Instagram’s Terms of Use is the content that you publish on your account.
It is important to recognise that just because you posted it, it does not mean you necessarily own the intellectual property in that content. If you are posting content that belongs to someone else and you do not have a right to do so, or you do not acknowledge the creator, you may be infringing someone else’s intellectual property rights.
The tale continues…
Finally, all social media pages, including Facebook and Instagram are entitled to update their policies from time to time, and indeed do. Updated policies are required to be given to you before taking effect so that you are permitted an opportunity to decide whether you will continue your use of the services under the new terms. In the words of Instagram – if you do not agree with their terms of service, do not use the service!
As the saying goes that you should not judge a book by its cover, so too should you not undervalue an intangible (golden) asset such as IP.
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you ever want to discuss with us the complexities and exciting aspects of IP,
please contact our office.