Our last article looked at the issue of control of copyright on social media platforms following the recent case, Sinclair v Mashable.
Only 2 months after the Sinclair decision, the U.S. District Court for the Southern District of New York has revised its position in a new case, McGucken v Newsweek.
A tale of two cases
In very similar conditions to Sinclair, Newsweek had published an article featuring an embedded Instagram post of photographer, Elliot McGucken, without his permission.
Relying on the ruling in Sinclair, Newsweek argued that because the image was posted to McGucken’s ‘public’ profile, it could rely upon Instagram’s terms of service.
However, despite the Sinclair decision, the court refused to dismiss McGucken’s case. While the court did accept that Instagram has the right to sublicense publicly posted photographs to other users, it concluded that there was insufficient evidence to prove that Instagram had sub-licensed the photo to Newsweek.
Instagram weighs in
Instagram has released a statement clarifying its position on the issue, stating:
“While our terms allow us to grant a sub-license, we do not grant one for our embeds API… Our platform policies require third parties to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content, if a license is required by law.”
So, the court’s decision combined with Instagram’s statement on the issue has now emphatically altered the legal position set out in Sinclair.
What does this mean for you?
Photographers and other creators wishing to have stronger control over their copyright when sharing their photographs online will welcome this development.
However, this decision also serves as a strong warning to businesses (especially digital media outlets) to ensure they obtain the correct permissions before using or embedding a photographer’s work onto their website.
Earlier last month the European Parliament voted in favour of the EU
Copyright Directive (known more formally as ‘Directive on Copyright in the
Digital Single Market’), proposed legislation designed to better meet the needs
of copyright protection in the Internet age.
The directive is an attempt at amending the imbalances between the large
digital corporations and the content creators who use these platforms to share
their work. The aim is to implement a more rigorous process for protecting
works against copyright infringement, while also providing a more efficient way
to distribute earnings to rightsholders and reduce the ‘value gap’ between
creatives and the big players in the tech world.
With piracy and the misuse of copyright being one of the ubiquitous
consequences of the digital era, updating copyright protection laws would be
something to get behind and celebrate, right?
While those in the creative industries, such as publishers, music
labels, and individual creatives have thrown their support behind the
Directive, many others, especially those in Silicon Valley, are rallying in
strong opposition of the proposed laws; extreme opposers even heralding the
“death of the Internet” as we know it.
Two specific articles of the directive find themselves at the heart of
the polarising debate, namely, Articles 11 and 13.
Article 11, aptly nicknamed ‘the Link Tax’, is designed to allow
publishers of news content to request online platforms and news aggregators to
obtain licences before they are able to share any of their publications. The
obvious players finding themselves in the cross-hairs of this article are the
larger platforms such as Google and Facebook. However, while individual and
non-commercial use has been exempted from the law, there is concern the article
will have broader implications, especially on smaller websites who wish to
publish snippets and links to articles and who may be unable to afford the
Article 13, dubbed the “upload filter”, is the more controversial of the
The article is aimed at holding platforms that host user-generated
content (such as YouTube) liable for any misuse of copyright that may result
from any material uploaded by their users. Essentially, it means these
platforms can be sued directly by rightsholders for infringement.
While the current method of policing the misuse of
copyright is by responding to complaints by rightsholders, and removing any
infringing content accordingly, the directive will require these platforms to
take “effective and proportionate” measures to prevent unauthorised
works from being uploaded.
“But YouTube has over 300 hours’ worth of video content uploaded every
hour. How could they possibly find and stop all the infringing content from
being uploaded?” you ask. It is exactly this practicality of complying with
Article 13 that has proved one of the more contentious points of the debate.
It is argued that the only possible way to
implement this process of prevention is by using automatic filtering technology
capable of scanning through every single piece of content and
stopping any content it recognises as copyrighted material in its tracks. Easy
While it might not be a significant burden for the giants of the tech
world, like Google, YouTube, and Facebook, who have the finances to develop and
implement such technologies, its effect on smaller platforms appears to be more
problematic; with some contending it will hinder the growth of digital
platforms in the EU which will be unable to cope with the article’s
Just as concerning is just how efficient such filtering technology can
be. It has been queried how the technology will be able to recognise and
distinguish copyright infringement from other authorised or legal uses of
copyright, such as parody or satire. This worry has given the article another
common nickname: the “Meme Ban.”
For those not familiar, memes are often created by using still images
(commonly taken from copyrighted works such as photographs, films, or
television shows) and layering text over the top for comedic effect or
expression of an idea. While they are most often created without the author’s
consent for use of an image, they are still currently considered legal under EU
law. Accordingly, there are serious concerns that if the filtering technology
required by Article 13 is unable to distinguish legal use from infringement,
content such as memes will mistakenly be flagged as infringement.
So, while memes may not be technically banned as the nickname suggests,
they may likely still be flagged and killed off amongst the other infringing
What happens next?
The proposed legislation still faces one more round of voting in January
2019 before it will receive final approval. Many believe that, after the
successful vote last month, it is very unlikely the legislation will be
defeated in the new year.
What remains to be seen is in fact, however, is just much of a
disruptive impact the directive will have on the Internet both in the EU and
around the world.