Tan (2014)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Tan (2014)
Title: Terms of Service on Social Media Sites
Author(s): Corrine H.Y. Tan
Year: 2014
Citation: Tan, C.H.Y. (2014) Terms of Service on Social Media Sites. 19(2) Media and Arts Law Review, 195-220
Link(s): Open Access
Key Related Studies:
Discipline:
Linked by: Tan (2015)
About the Data
Data Description: The study examines the terms of service provided by Facebook, Youtube, Twitter, and the Wikimedia Foundation, through plain text analysis. The focus of the study is uncovering terms which relate to users generative behaviours, which the author surmises are:

(a) ownership and licensing; (b) whether terms of service can be unilaterally altered; (c) copyright policy generally; (d) indemnification policies, and; (e) jurisdiction or choice of law.

Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: Yes
Comparative Study?: Yes
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
Funder(s):

Abstract

"This article considers the provisions within the terms of service (‘TOS’) of the social media behemoths of today — Facebook, YouTube, Twitter and the Wikimedia Foundation. In particular, it examines the main provisions that purport to regulate, from a copyright perspective, generative activities on social media sites. This empirical work is undertaken so that the article can shed light on the relationship between the contractual and copyright regimes. To do so, the article identifies the instances where the contractual regime is to some extent aligned with the copyright regime, and further, where there are potential incompatibilities between the two regimes. It also refers to the legal position in the United States, as a result of the nationality of the companies operating the social media sites examined. Additionally, this article makes references to the legal positions in the United Kingdom and Australia, to draw attention to the potential implications of the TOS on social media site users in other jurisdictions. The discussions in the early part of the article lead readers to its conclusion on the appropriate role for TOS, vis-à-vis the copyright regime, in regulating generative activities on social media sites. Its concern is a real one and can serve as a platform for future scholarly contributions to the field, given the worldwide usage of social media sites."

Main Results of the Study

Terms of service compel users to grant broad, unencumbered licences both to social media sites and other users which allow them to use their content. The author notes that such a grant is most likely precautionary in nature, as most content on these sites will not reach the threshold of originality to convey any such ownership rights.

This assumption of ownership also impacts e.g. privity of contract assumptions in the terms of service. Extending obligations to third parties under the terms of service (e.g. such as the requirement to attribute the original user of a tweet) also relies on the assumption that ownership has been vested in the original user.

Furthermore, most sites choose to be governed by US law, which may cause issues where users are based in other jurisdictions (such as the EU).

Overall, the study concludes that there are several incompatibilities between these terms of service and current copyright regimes, though these may be limited by e.g. the fact that most user-generated content is unlikely to be protectable. The capacity for contractual overridability of the copyright regime can therefore result in “extreme concentration of power in a few companies”.

Policy Implications as Stated By Author

Whilst the author does not explicitly state any policy recommendations, they instead highlight the potential ramifications of allowing contract law to substitute copyright legislation. The terms of service surveyed tend to favour the social media site at the expense of the user, and are therefore imbalanced.

Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Green-tick.png
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Green-tick.png
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Green-tick.png
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Green-tick.png
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets