Tuesday, 15 March 2011

Colonel Mustard is not in the Library with a copyright claim form

My friend Sym came up with a neat joke:

Playing Big Society Cluedo. It's easier than normal Cluedo because there isn't a library.

and promptly tweeted it. Much retweeted it ended up being used by the BBC's Now Show, without attribution of any kind. Sym is a generous soul and I doubt that worried him too much but he mentioned it on his (private) facebook wall.

As regular readers will know I'm not exactly a copyright maximalist, but I do find it unattractive that large and powerful organisations that would certainly pursue you if you used their intellectual property appear to be quite happy to use other people's so long as those other people are too small to matter very much. I jokingly suggested I'd help draft his claim form and that lead him to wondering whether there could be any copyright in so slight a thing as a tweeted joke.

Unsurprisingly there are lots of answers on the internet, as a cursory google search will show. One site says categorically "no"; an article in the WIPO magazine thinks "it depends" and there's even a site called canyoucopyrightatweet.com written by a US attorney which again comes down on the side of "it depends". Unfortunately all the really detailed discussion relates to US law, not European or English law. While there's some internationally harmonisation of copyright, there are still significant differences.

So, what of English law. Well, English copyright protects, amongst other things any "original literary work". Most tweets are not going to be original - in fact in many cases that is the whole point - but some, like Sym's joke, seem quite capable of being so. Certainly, I am quite sure that he came up with the joke first.

A "literary work" does not have to be high art. Indeed section 3 of the Copyright, Designs and Patents Act 1988 says that a

“literary work” means any work, other than a dramatic or musical work, which is written, spoken or sung

so its really quite a broad term. In a relatively recent case which rejected a claim for copyright in the names of commands for an airline booking system, Mr Justice Pumfrey was quite clear that single words, at least on their own, could not be copyrighted. In the 2009 Infopaq case, the European Court of Justice were prepared to accept that an 11 word textual extract could be the subject of copyright and last year in the case of Meltwater Mrs Justice Proudman agreed that, whatever might have been the position under English law, the decision in Infopaq made it plain that as a matter of European law copyright could exist in newspaper headlines provided they were original enough.

So it seems to me that a tweet, provided it is sufficiently original, can be the subject of copyright.

But as I said in an earlier post the existence of copyright is only half the question. What would or would not infringe a short humorous tweet? I haven't heard the particular episode of the Now Show in question but if they read it out they have certainly infringed (and twitter's terms of service don't appear to let them off the hook). If, on the other hand, they only paraphrased the joke, the question is more difficult. Sym might be able to claim ownership of the particular expression of his joke, but he cannot copyright the idea that lies behind it. That idea is free and open to all.

The difficulty with this neat distinction (called the "idea/expression dichotomy") is that courts recognise that you can infringe by copying something more abstract than the exact words used. This should be obvious when you consider that a translation of a work (which will usually use quite different words, unless its into "pirate") is a potential infringement of the original work. Too close a copy of the plot or characterisation in a play (say) would be an infringement even if there had been a good deal of rewriting and reworking.

How on earth this would apply to something as small and neat as a tweet is anybody's guess. I suspect that it is only a matter of time before someone tries to test the question.

UPDATE

In the comments, Sym has helpfully provided the quote from the Now Show:

Someone amused me no end on twitter the other day, ok, when they answered twitter's question 'what are you doing?' by writing: "I'm playing big society cluedo, it's easier than normal cluedo because there isn't a library"

Clearly, if there is copyright in the tweet, this looks like a potential infringement because the whole tweet has been copied pretty much verbatim. But, could there be a defence. There is, of course, no such thing as "fair use" in English law. But quoting a tweet could be "fair dealing for purposes of criticism or review" which is a defence under section 30 of the Copyright, Designs and Patents Act 1988. This requires that:

  • the use is fair dealing
  • the purpose of the use is criticism or review of a work (not necessarily the work quoted) or works
  • the use is accompanied by sufficient acknowledgement

Normally it would not be "fair dealing" to use the whole of a work, but where the work is as short as a tweet it is likely to be impossible to use it critically in any meaningful way without quoting the whole of it. "Someone amused me" probably counts as "criticism".

What about attribution? Section 178 of the act defines "sufficient acknowledgement" as "an acknowledgement identifying the work in question by its title or other description, and identifying the author". "Someone" doesn't seem like enough to me. Although its just possible to argue that "Someone" means "Someone on twitter" and that it is thereby possible identify the author by searching on twitter for the origin of the tweet. Seems like a long shot to me.

Update: I realise with some embarrassment that I didn't link to Lillian Edward's blogpost on this very question.

11 comments:

Simon Bradshaw said...

I fully agree with your analysis and have no doubt that an original tweet is protected by copyright under English law. As you say, the question is one of what acts infringe that copyright.

One argument is that the prominence given to the 'retweet' feature together with its widespread use could mean that there's an implied licence to retweet. Now just copying a tweet elsewhere isn't quite the same as retweeting, and of course retweeting, if done properly, preserves the username of the original tweeter (so there is fair attribution.) It's reposting without attribution, as you say, that is most problematic.

As for adapting the tweet, the sheer brevity of tweets may encourage it (although part of the charm of a good tweet is its pithiness.) If I had to pick a lawsuit-inducing scenario, it would be that of a Hollywood blockbuster turning out to have its plot summarised in a tweet from just before it was first pitched!

Sym said...

Thanks for writing this up Francis. You are correct in your assumptions: I'm not the sort to get upset by this sort of thing, and it's slightly flattering that something I wrote in an offhand way one evening appeared on a show I've enjoyed for years.

There is a wider issue here though, so it's important to explore these matters.

The show can still be downloaded in MP3 format from the BBC's 'Friday night comedy' podcast feed. I'll not link to it, as they take the file down 7 days after first broadcast.

Starting at 10:53:

Someone amused me no end on twitter the other day, ok, when they answered twitter's question 'what are you doing?' by writing: "I'm playing big society cluedo, it's easier than normal cluedo because there isn't a library"

So, apart form prefixing "I'm", it's an exact quote of the tweet and a statement that he lifted it from twitter.

If he didn't admit to seeing it on twitter and attempted to pass it off as his own I think we would be looking at a very different matter here (Not that I'm any sort of legal expert).

Philippe Bradley said...

The analysis seems spot on but really, is there any sense in copyright extending to tweets?
- Who needs copyright to incentivise tweeting?
- Are tweets the sort of content that copyright law needs to incentivise? - - And who suffers (actually suffers - apologies, Sym, if your disappointment at not scoring a contract with the podcast writers or listeners) from infringement of their copyright in a single tweet? (now, a tweetstream, that is a different issue - e.g. a liveblog of a current event, or some other narration or discourse)

I wouldn't begrudge Sym a minor remedy for the non-attribution, but for copyright law to do anything more in this circumstance would seem deeply inappropriate.

Lilian Edwards said...

To @Sym, there is indeed a wider issue worth raising - I got alerted to the matter by a friend pointing out that professional if not yet mega star comedians were trying out their jokes on Twitter to gauge audience response and then finding them lifted by better known comedians without attribution. There's quite a lot of such in various contexts (eg extensive RT ing of embarrassing tweets by Gillian Mckeith which she had removed herself , surely thereby revoking any implied license?). I've also noted the widespread practice of filling pages in papers (inc broadsheets) with celebrity tweets - not to illustrate stories which presumably comes under some (c) fair dealing but as the entire content which surely doesn;t. I think implied license is the most likely argt (and of course the celbrities won't sue)- but as it is well accepted just "putting stuff on the web" doesn't usually create implied license to copy, I don't particularly see why tweets out of context would be different - but I agree with Simon that in the context of Twitter (or a client) RT prob does imply acceptance of implied license to copy *within* Twitter(and just as well too - see my blog piece..).

pangloss said...

To @Philippe interesting thought derived from your comment - what if Twitter itself stated Twitter contributions were released under a CC attribution no-other-restrictions license? (sorry I donlt know the technical categories well) Could it be valid for them to make that the default, and for individual users to be able to "opt out" of that f they didn;t like it? very Google Library practice I know., but would supply most people with an enforceable remedy of the kind they'd probably most like?

Francis Davey said...

@Sym - thanks for the full quote, I've updated the post to take it into account.

@Philippe - I'm not even thinking about whether there should be copyright, I have enough work as it is keeping up with what the law is not what it should be. At present I remain unconvinced that copyright is necessary at all. I've certainly seen no good arguments in favour and cogent ones against.

@Lillian - CC-BY is the one you are looking for I think. Twitter certainly could allow users to choose their own attribution mechanism or adopt a fixed one for the whole site. No problem there. They don't seem to have done so.

And yes, I agree that tweeting gives an implied licence to retweet, but I'm not sure whether it goes further than that.

Sym said...

@Francis, re your update:

"Although its just possible to argue that "Someone" means "Someone on twitter" and that it is thereby possible identify the author by searching on twitter for the origin of the tweet. Seems like a long shot to me."

The odd thing is that for a couple of weeks after I first published the tweet I got a 'long tail' of retweets. That is to say, there was an initial high spike where ~400 people retweeted it and then ~100 more over the next 2 weeks.

On the Saturday morning when I first heard the podcast I noted that there was another spike of about 10-20 people retweeting it (over a whole week after the previous retweet). I thought nothing of it until I heard the show later that morning. This does imply that some people did exactly what you said and searched for the original tweet.

Searching for "Big society cluedo" on twitter shows that many people copied the quote from the radio and tweeted it themselves, attributing Jon Holmes (the person who read the tweet out).

@Philippe Bradley: I suspect you're joking, but to be clear I have no disappointment or resentment about this at all. It's been a catalyst for an interesting thought experiment about copyright and tweets, no more. I don't expect royalties ;)

Anonymous said...

It sure as heck is possible to identify the author of the tweet by starting from the information provided by the Now Show and using Google, because that's how I come to be reading your blog entry.

Of course, you might still argue that just because it's identifiable doesn't mean it's sufficiently attributed.

Francis Davey said...

@Anonymous. Spot on. The efficacy of search engines means that its much easier now to determine who was the author of a work than it ever used to be. I know of no discussion as to how this might effect the attribution requirement in cases of fair dealing.

Patrick Torsney said...

Fascinating and perfect timing. After wading through lots of opinion from the USA I finally found this, and written recently to boot!

My own interest started when I saw someone on Twitter who had included a 'All tweets (c) [name]' at the end of their brief profile 'about me' section. I wondered whether it was possible/would hold up/what the point was trying to insinuate everything she said (presumably) was copyright. Overkill?

As it was, the tweets were not very interesting; in fact, suggesting they were in anyway protected made me much more critical of whether there was anything actually of value in what the person was tweeting about. It very much put me off the tweeter in question whereas usually I might 'give them a go'

Thanks again for the UK perspective. Oh, and I've just Tweeted this article by the way, hope that's OK ;-)

@ilegalbytes

Francis Davey said...

@Patrick - Thanks for the appreciation and the tweet. I doubt that tweeting about this post could infringe any copyright in it for many reasons. Tweeting the whole post bit by bit for commercial purposes without attribution might do so, but I rather think that's unlikely.