1.

0 Introduction

In our assignment, we will discuss about the copyright issues in social media. Before
we dive deeply to the issues, let’s have an introduction about what is copyright and
social media.

Basically, copyright law is one of the branch of intellectual property law

which protects the proprietary right of authors with respect to their created works 1.
The rationale to protect the copyright work are to encourage progress in the arts and
science for the benefit of public and to secure a fair return for creators so as to ensure
the continued creativity2. Through copyright law, the owner of the copyright is
entitled to control the doing of distinct acts as regard to the created work but for a
certain period not indefinite period. Copyright law in Malaysia is governed under
Copyright Act 1987. Copyright arises automatically upon the creation of a work
without the need for any registration of copyright. Therefore, there is no registration
system exists in Malaysia for registration of copyright. According to section 7(1) of
Copyright Act 1987, the work eligible for copyright are literary works, musical works,
artistic works, films, sound recordings and broadcasts. 3 Violation of the copyright is
called infringement.

While for social media, it is the collective of online communications channels

dedicated to community-based input, interaction, content-sharing and collaboration. 4
It is a platform for the community to share information, personal massage, idea and
video. There are different types of social media which is forum, microblogging, social
bookmarking and wikis. The examples of social media that are famous nowadays are
Facebook, Twitter and Instagram. Social media is fundamentally about sharing
content, making the risk of copyright infringement ever-present in a climate of legal
uncertainty.

Social media originally used by people to interact with friends and family but
were later adopted by business man that wanted to take advantage from the social
network which easily to reach out to customers. For example, the business man may
inform them of giant sales and offering them special coupons through the social
1Tee, K. L. (2008). Copyright Law in Malaysia. Selangor: Lexis Nexis
2 Sony Corp of America v Universal City Studios, Inc 464 US 417
3 Section 7(1), Copyright Act 1987 [hereinafter the CR Act 1987]
4 WhatIs.com, “Social Media”, http://whatis.techtarget.com/definition/social-media (accessed
November 19,2016)
media.5 Nowadays, people and organisations remain connected through various forms
of social media networks. The social media make all people easier to voice out
themselves either for good or bad.6 There are lots of social media that were being
developed in this modern world such as Facebook, Twitter, Instagram and YouTube.

As for the student’s perspective, social media provides lots of benefits as it

becomes the main platform for the students to extract information or interact among
themselves. It is not only affects the students; social media also play an important role
among businessman. For example, Jack Ma who is the founder and executive
chairman of Alibaba group, one of the world’s largest e-commerce businesses had
successfully developed his business network throughout the world. Everyone will go
online shopping rather than walk out from the door. This proved that social media
plays a fundamental role in maintaining the business network of the people.

However, when a business posts a photo on Facebook or another site, who is

the copyright owner and what rights do others have to use or disseminate that photo?
The question of who owns what and how social media platform terms and conditions
play in are relevant questions in an age where social media users relish the
opportunity to instantly tweet, post, re-post, share and over-share around the world.
7
We should know that social media is fundamentally about sharing content, making
the risk of copyright infringement ever-present in a climate of legal uncertainty. So,
let’s look into the issue deeply.

5 INVESTOPEDIA, “Social Media”, http://www.investopedia.com/terms/s/social-media.asp (accessed

November 19,2016)
6 Choity Ahme, “The Impact of Social Media in the 21st Century,” Social Media and Development,
entry posted March 11,2014, http://wpmu.mah.se/nmict141group4/2014/03/11/the-impact-of-social-
media-in-the-21st-century/ (accessed November 19,2016)
7 Sotos LLP,”Social Media and Copyright: Can I post the photo?”
https://www.lexology.com/library/detail.aspx?g=978acb6a-7ccd-4ffc-99b0-798e2f70b795 (accessed
November 21,2016)
2.0 Relationship between Social Media and Copyright

There are a lot of things are shared by the users in the social media such as photos,
videos, songs and so on. The sharing of these things on social media if without realise,
there might be an infringement of copyright happened and the users who shared the
items will be sued by the copyright owner. Thus, the proper way to prevent such case
from happening is by getting the express consent of the copyright owner and it is
better to reduce to the form of documented licence agreement8. Social media, like
Facebook, Twitter, Instagram, WhatsApp and Pinterest permit online posting of
material that may be copyrighted. The social media site does not own the work that
has been posted on their site, the owner still retains the copyright. However, by
agreeing to post the works on the site, you sign an agreement that gives the site a
license to use the works. In these cases, the license is given without any payment 9.
Different social media such as Facebook and Instagram have their own regulation
regarding the copyright matter. Let’s look in details on how they are dealing with the
copyright issues. We will discuss about what extend did the sharing and posting
content at social media that will bring infringement of copyright and what action
could be taken if that happen.

2.1 WhatsApp and Copyright

WhatsApp is an application that can be used on various types of smart phones by people to
text each other using internet service on their phones and this type of service is known as
instant messaging10. Based on the statistics report from WhatsApp company on June 2017, the
number of active users is 1.2 billion and average of 1.6 billion photos are being shared via
WhatsApp11. There was a new update of policy in WhatsApp on the matters of intellectual
property, copyrights and trademarks that is “Committed to helping people and
organizations protect their intellectual property rights”. The infringement of copyright
only will arise when the person to whom the copyright is infringed reports the same
and requests WhatsApp to remove the infringing content such as profile pictures,

8 The relationship between copyright and social media: “it’s complicated. (2016, October 30).
Retrieved from http://www.colemangreig.com.au/BlogPost-463-the-relationship-between-copyright-
and-social-media-its-complicated.aspx
9 Murray, J. (2016, September 09). The balance. Retrieved from Copyrights and Social Media Issues:
https://www.thebalance.com/copyrights-and-social-media-issues-397821
10 Difference Between. (n.d.). Retrieved from Difference between Facebook and Whatsapp:
http://www.differencebetween.info/difference-between-facebook-and-whatsapp
11 Smith, C. (2017, November 12). Business Statistics. Retrieved from 65 Amazing WhatsApp Statistics
and Facts: https://expandedramblings.com/index.php/whatsapp-statistics/
profile names and status message. This is because the WhatsApp will not crack down
on all stuff that infringes copyright. It is suggested to send a message to the relevant
WhatsApp user you believe may be infringing your copyright. WhatsApp also ask for
“information reasonably sufficient to permit” it to locate the material, which would
mean the phone number of the individual who has submitted the infringing content.12
Before this, copyright was not mentioned under WhatsApp legal policy. Under
WhatsApp Terms of Service, regarding license, it is stated that information that their
users submit cannot be claimed by them and WhatsApp user has necessary right to
such information.

All copyrights, trademarks, domains, logos, trade dress, trade secrets, patents, and
other intellectual property rights associated with WhatsApp services are owned by
them and users may not use those unless they have gained express permission and
except in compliance with WhatsApp Brand Guidelines. It does not allow their users
to violate intellectual property right of someone else when using their services13.
WhatsApp host their account information of users, including their profile picture,
profile name or status message of the users, if they decide to include them as part of
their account information and if someone has infringed the copyright that they are
hosting, WhatsApp users can claim copyright infringement by email a completed
copyright infringement claim to [email protected] or copyright agent of WhatsApp
and request for it to be removed14. WhatsApp also might take a further action by
blocking the users who tried to violate the copyright after they have been given
warning to not doing so for many times.

2.2 Facebook and Copyright

Worldwide, there are over 2.07 billion monthly active Facebook users for which is a 16
percent increase year over year 15 (Source: Facebook 11/01/17). Under Facebook’s current
terms, by posting your pictures and videos, users grant Facebook “a non-exclusive
transferable, sub-licensable, royalty-free, worldwide license to use any IP content that users
post on or in connection with Facebook (“IP License”). This IP License ends when users
12 Desk, T. (2016, August 2016). Copyrighted material on WhatsApp could land you in trouble.
Retrieved from The Indian Express: http://indianexpress.com/article/technology/copyrighted-material-
on-whatsapp-could-land-you-in-trouble-2996091/
13 Key Updates. (2017). Retrieved from WhatsApp Legal Info:
https://www.whatsapp.com/legal/#privacy-policy-contact-us
14 Key Updates. (2017). Retrieved from WhatsApp Legal Info:
https://www.whatsapp.com/legal/#privacy-policy-contact-us
15 “The Top 20 Valuable Facebook Statistics – Updated November 2017” https://zephoria.com/top-
15-valuable-facebook-statistics/ (accessed November 18, 2017)
delete their IP content or their account unless their content has been shared with others, and
they have not deleted it. The words “transferable, sub-licensable, royalty-free, worldwide
license” means that Facebook can license user’s content to others for free without obtaining
any other approval from user. For example, if the original photographer uploaded the photo
first onto Facebook and then others have taken it from there and uploaded it to their pages or
profiles, this is legal and within policy, there’s nothing Facebook can do about it unfortunately
even if they are taking credit for the images 16. User should be aware that once your photos or
videos are shared on Facebook, it could be impossible to delete them from Facebook, even if
you delete the content or cancel your account. In fact, the content still remains on Facebook
servers and they can keep backups17. Therefore, Facebook has a broad license to use the work
of the users, however there is no transfer of copyright and Facebook does not own the images
of the users in any way 18. When there is infringement of copyright on the work of a person in
Facebook, Facebook will require the he or she to fill out a reporting form which must be
supported with a complete copyright claim in his or her report. The person who reported need
not be the user of the Facebook to submit the report. Despite this, it is recommended to
contact the person who alleged infringe the copyright first to solve the issue without involving
Facebook. Facebook users must responsible to check the content that they want to post in
advance before posting it in Facebook, so that they will not post content which under the
copyright of others. Facebook will take down the post which content has infringed the
copyright and warning will be given to let them know that the content they posted to
Facebook was removed because of a notice of copyright infringement19. Contact
information, including email address and the name of the reporter organization or
client, and/or the contents of the report will be provided too20. As for Malaysia,
service provider under Section 43B of the Copyright Act 1987 is the platform for
Malaysian Facebook users to report the copyright infringement and ask to remove or
disable access of the reported contents21.
16 Does Facebook Really Own Your Photos?” May 13, 2015
https://www.plagiarismtoday.com/2015/05/13/does-facebook-really-own-your-photos/ (accessed
November 19, 2017)
17 “Who Owns Photos and Videos Posted on Facebook, Instagram or Twitter?”
http://www.nyccounsel.com/business-blogs-websites/who-owns-photos-and-videos-posted-on-
facebook-or-twitter/# (accessed November 18, 2017)
18 Does Facebook Really Own Your Photos?” May 13, 2015
https://www.plagiarismtoday.com/2015/05/13/does-facebook-really-own-your-photos/ (accessed
November 3, 20)

19 “Copyright”, https://en-gb.facebook.com/help/1020633957973118?helpref=hc_global_nav
(accessed Nowember 3, 2016)
20 Ibid
21 Ahmad Shamsul Abd Aziz, Rusniah Ahmad & Nazura Abdul Manap, “Peranan ISP dalam isu
pelanggaran hak cipta dan kebebasan bersuara,” Current Law Journal(A), 6, (2016): 2,
http://www.cljlaw.com.eserv.uum.edu.my/Members/DisplayArticle.aspx?
ArticleId=132120651&SearchId=6psb (accessed November 3, 2016).
References

(n.d.). Retrieved from Copyright: https://en-gb.facebook.com/help/1020633957973118?

helpref=hc_global_nav

Bailey, J. (2014). Does Facebook Really Own Your Photo? Retrieved from Plagiarism Today:
https://www.plagiarismtoday.com/2015/05/13/does-facebook-really-own-your-
photos/amp/

Desk, T. (2016, August 2016). Copyrighted material on WhatsApp could land you in trouble.
Retrieved from The Indian Express:
http://indianexpress.com/article/technology/copyrighted-material-on-whatsapp-
could-land-you-in-trouble-2996091/

Difference Between. (n.d.). Retrieved from Difference between Facebook and Whatsapp:
http://www.differencebetween.info/difference-between-facebook-and-whatsapp

Does Facebook Really Own Your Photos? (2015, May 13). Retrieved from
https://www.plagiarismtoday.com/2015/05/13/does-facebook-really-own-your-
photos/

Key Updates. (2017). Retrieved from WhatsApp Legal Info:

https://www.whatsapp.com/legal/#privacy-policy-contact-us

Legal Terms. (n.d.). Retrieved from https://www.facebook.com/legal/terms

Murray, J. (2016, September 09). Copyright and Social Media for business. Retrieved from
The Balance: https://www.thebalance.com/copyrights-and-social-media-issues-
397821

San, T. P. (2013). Intellectual Property Law in Malaysia. Sweet & Maxwell Asia.

Smith, C. (2017, November 12). Business Statistics. Retrieved from 65 Amazing WhatsApp
Statistics and Facts: https://expandedramblings.com/index.php/whatsapp-statistics/

Tee, K. L. (2008). Copyright Law in Malaysia. Selangor: Lexis Nexis.

The relationship between copyright and social media: “it’s complicated. (2016, October 30).
Retrieved from http://www.colemangreig.com.au/BlogPost-463-the-relationship-
between-copyright-and-social-media-its-complicated.aspx

Who Owns Photos and Videos Posted on Facebook, Instagram or Twitter? (n.d.). Retrieved
from http://www.nyccounsel.com/business-blogs-websites/who-owns-photos-and-
videos-posted-on-facebook-or-twitter/#