Regulating Content on Social Media by Corinne Tan;

Author:Corinne Tan; [Tan;, Corinne]
Language: eng
Format: epub
ISBN: 9781787351738
Publisher: Book Network Int'l Limited trading as NBN International (NBNi)

IV. Conclusion

This chapter, together with Chapter Two, form the basis for my evaluation in this book of the consistency of the TOS with the copyright regimes in the US, the UK and Australia. I have identified the key terms of the five selected social media platforms that govern or have implications on users’ content-generative behaviours. I have also applied, under scenario two, the TOS to the content-generative activities undertaken by Jane and other users in the case study. Out of the total of eleven content-generative activities considered, the application of the TOS to as many as five of these activities results in breaches of the respective TOS.

I have further discussed the relationship the TOS have with the copyright regimes, in particular, the extent of alignment and incompatibility between the regimes. The TOS are aligned with the copyright regimes to some extent – this is reflected by the incorporation of the notice and takedown mechanism under the DMCA into the copyright policies of the five social media platforms studied. In addition, each of these platforms has adopted a termination policy for repeat infringers, in order to be eligible for the DMCA safe harbour provision.219 I have argued that the TOS and the relevant copyright regime reinforce one another when they are in alignment. Copyright infringing acts by users can lead to legal consequences under the DMCA, and users who repeatedly receive copyright takedown notices may be expelled from such platforms.

On the other hand, three areas give rise to potential incompatibilities between the TOS and the copyright regimes. These incompatibilities are arguably obscured by the oversimplification of complex contractual and copyright issues under the TOS.

The first is that the conferment of ‘ownership’ of content on a user who creates it under the TOS is not consistent with the concept of ownership under the copyright regime. This label of ‘ownership’ is misleading: it does not per se entitle the user to the exclusive copyrights to which a copyright holder is entitled under copyright laws, as not all content on social media will be copyright protectable in the first place. Even if the content in question is copyright protected, such content will typically be subject to an unencumbered licence granted in favour of the relevant social media platform. This renders the reference to the ‘ownership’ of content a limited one for the copyright holder of the content, as he or she has few rights to such content.

The second is that there must be adequate clarity in order for the licensing clauses effectively to allow third party users to use the content shared on social media, in spite of the doctrine of privity. Such an inquiry as to whether these clauses are clear enough will be premised on an assumption that the relevant content is copyright protected in the first place. A strict application of the doctrine of privity can thus undermine the attempt made by social media platforms to confer permissions on third party users to use copyright-protected content.

The third is that the choice

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