Today, I saw an avalanche of my Facebook friends posting the following statement in their timeline:
In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, postings, writings, comments, illustrations, comics, paintings, professional photos and videos, etc. (as a result of the Berner Convention). For commercial use of the above my written consent is needed at all times!
(Anyone reading this can copy this text and paste it on their Facebook Wall. This will place them under protection of copyright laws. By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook’s direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).
Facebook is now an open capital entity. All FB members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates...
As an intellectual property lawyer and someone who is known for saying that if you require complete privacy, you shouldn’t post anything on the internet, I just couldn’t pass up this opportunity to comment why the quoted statement makes very little sense.
First of all, users’ relationships with Facebook are governed by a contract, namely their Statement of Rights and Responsibilities, which clearly state:
By using or accessing Facebook, you agree to this Statement, as updated from time to time…
Essentially, publicly traded or not, our relationship with Facebook is the same as in the case of any other continuing framework agreement – it’s contractual, like any other.
Think, for example, of a library. When we get a library card, we agree to stick to certain rules that govern our use of the books and the premises. Until we actually go to the library and borrow a book, we care very little about our mutual rights and responsibilities (unless there’s an annual fee payable for the privilege of continuing to hold the library card). Once we walk out of the library holding a book, however, we have suddenly assumed many responsibilities: to take good care of the book, to return it on time, to pay a fine if we don’t.
Similarly, just because we signed up to Facebook, very little has changed in our lives until we actually started posting stuff – comments, status updates, photographs, etc.
Like any other contract, it can only be changed unilaterally if both parties agreed to such a possibility. Section 14 of the Statement of Rights and Responsibilities states that Facebook can change the rules at any time, by giving users notice and, in some cases, an opportunity to comment on the changes – and users agree to it by continuing to use Facebook:
Your continued use of Facebook following changes to our terms constitutes your acceptance of our amended terms.
Not surprisingly, no such possibility exists for unilateral changes initiated by users.
What this means is that if a user does not like the rules, the user has two options:
1. negotiate a direct deal with Facebook pursuant to which the user (or everyone else as well) will be accorded other terms;
2. stop using Facebook or even close down the account.
That’s pretty much it.
Posting a statement that is inconsistent with Facebook’s Statement of Rights and Obligations is akin to borrowing a book from a library and then sending a library a napkin with a note on it stating that you will return the book in a couple of years, maybe. Wouldn’t be very helpful, would it?
Second, you own copyright in your works automatically, you don’t need to declare anything to place your works under protection of copyright laws, that is as long as your works CAN be protected by copyright at all. In other words, if you created something that is an original literary, dramatic, musical or artistic work, that work is automatically protected in Canada and – through a number of international treaties – virtually worldwide. On the other hand, if what you are trying to protect is not a work capable of copyright protection, then no declaration will render the work copyrightable. So stating that you “declare that your copyright is attached to all” of that stuff listed in the declaration is absolutely meaningless, because the declaration does not give or take away any rights to and from you.
Third, Facebook cannot legally exist unless users allow it to use what users post. It’s not that users post their comments in a vacuum. All of these comments go to Facebook’s servers. Facebook stores these comments and displays them according to the users’ privacy settings. Unless Facebook secures permission to store user content on its servers, Facebook would be violating its users’ intellectual property. The nature of any license is precisely that – to make what would have otherwise been an infringement allowable to the licensee.
Section 2(1) of Facebook Statement of Rights and Responsibilities states:
For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
With one small exception, this is perfectly reasonable. Facebook cannot expose itself to a hundreds of thousands of copyright infringement lawsuits per minute: according to these statistics, 684,478 pieces of content are shared on Facebook every minute.
The small exception is that the license that you grant to Facebook says that it is “sub-licensable” but it does not say that it can only be sublicensed for non-commercial purposes. Technically, this could mean that Facebook could publish a book of best photographs and comments. There are a few safeguards, however. On the one hand, the license automatically terminates when a user deletes the post (unless someone else has reposted and not deleted the post). On the other hand, it’s hard to imagine that Facebook is run by suicidal people. How many people are going to continue posting about their private lives if Facebook does anything even closely resembling publishing such book?
Fourth, when you share your information with anybody but yourself, there is always a risk that someone else will make that public. We all have heard the horror stories about someone accidentally hitting REPLY ALL instead of just REPLY. We’ve all heard stories about someone forwarding too much of a confidential correspondence to the wrong person. Even if you tell Facebook to disallow others to “share” your content, there is always such thing as “copy-paste”.
The answer is very simple, if you want your stuff to remain private, don’t post it on the web, ever – not through Facebook, not via Twitter, not on your blog, not on your website, not in YouTube comments, not through a game server of a new cool app – EVER!
There is always a balancing act between privacy and convenience. Think about your desktop computer. You may use a single password on all of your platforms, save all the cookies and have no passwords wherever possible. This will save a lot of time but your system will be a hacker’s dream.
On the other hand, you can install firewalls, unique 30-character passwords for every website, social media and email account, disconnect from the internet unless you are actively using it, never store any personal information on computers with internet access, etc. This will make things much safer, but much less fun to use.
Facebook is no exception. You can’t expect to be selectively social. You can’t push the toothpaste back in the tube. If you want to be on Facebook, use your brains and don’t post stuff that you wouldn’t want someone 3 years down the road to see. Don’t expect someone else, including Facebook, to fix things for you. Take responsibility for your actions.
Don’t get me wrong. I’m a sucker for conspiracy theories about Google, Facebook, communist implant in the White House and the global caliphate. But I also love the gadgets, the apps, and the web.
Yet, I know that everything I post will leave a trace, however weak that trace may be. So I approach the web accordingly, knowing full well that if I want a guarantee that something does not become public, I just keep it to myself. And if I post something, I am prepared to face the consequences.
Like anything about law, it’s all about risk management.
On July 12, 2012, the Supreme Court of Canada issued its reasons in five copyright cases: Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), Re:Sound v. Motion Picture Theatre Associations of Canada, Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, and Society of Composers, Authors and Music Publishers of Canada v. Bell Canada.
The results, while quite predictable, are very disappointing for someone who values individual rights, freedom and capitalism.
Howard Knopf in his post, A Proud and Progressive Pentalogy Day in Canadian Copyright Law has provided a brief outline of what the five cases stand for. It’s a good summary of what the cases stand for, but I squarely disagree with Mr. Knopf on his conclusions. My issues with his position start with the title, namely the use of the word “progressive”. I trust that the use of it is intentional and is in reference to the progressive movement. You may or may not agree with Glenn Beck, but the important question to ask when using the word progressive, even outside the political context is, “what are we progressing to?”. In my opinion, we are progressing away from a system where interests of the individual trump interests of the society and towards a system where interests of the “society”, expressed by whoever has the power to claim to be in position to represent such interests, trump interests of each particular individual making up that “society”. This never ends well.
Leaving the technicalities for a future post, I have three big problems with the 5 decisions.
My biggest problem is with paragraphs 9 and 10 of the Bell case, where the Court unanimously held that:
 Théberge reflected a move away from an earlier, author-centric view which focused on the exclusive right of authors and copyright owners to control how their works were used in the marketplace: see e.g. Bishop v. Stevens,  2 S.C.R. 467, at pp. 478-79. Under this former framework, any benefit the public might derive from the copyright system was only “a fortunate by-product of private entitlement”: Carys J. Craig, “Locke, Labour and Limiting the Author’s Right: A Warning against a Lockean Approach to Copyright Law” (2002), 28 Queen’s L.J. 1, at pp. 14-15.
 Théberge focused attention instead on the importance copyright plays in promoting the public interest, and emphasized that the dissemination of artistic works is central to developing a robustly cultured and intellectual public domain. As noted by Professor David Vaver, both protection and access must be sensitively balanced in order to achieve this goal: Intellectual Property Law: Copyright, Patents, Trade-marks (2nd ed. 2011), at p. 60.
This is exactly the problem with the current trend. I strongly believe that interests of the public should be completely irrelevant to copyright laws and copyright policy. Whether copyright laws provide any benefits as a “fortunate by-product” or they actually hurt the public does not really matter. What matters is whether those who create something that had not existed before have a chance to offer it to the public on THEIR terms, rather than being forced in a situation where they should either not disclose it to the public or expect the public to dictate such terms.
Notice the difference between a situation when the market forces a manufacturer to lower prices not to be squeezed out by the competition (as in copyright owners voluntarily adopting new models depending on granting access to their works for free) and a situation when the government adopts laws that say that those who really want or need to use the manufacturer’s product are entitled to steal from the manufacturer, but no more than 20% of the manufacturer’s total output (as in the government telling copyright owners they cannot sell their works because the public should have the “user right” to use them for free).
No matter what the Supreme Court of Canada says, copyright is not about access. It’s not about dissemination. It’s not about the royalties. The only thing that copyright is about is control. Take away control and you have slavery, because then the author is in no position to decide on which conditions to offer the results of his work to others. Whether it’s the public, the government or the collective society that decides it – it’s not the most important person in the equation, the author and the copyright owner.
My second big problem is that all five cases regarded copyright in the context of tariffs. Based on the false premise that copyright is about royalties, the Court seems to have used the following logic: “We have all these tariffs. If we decide that this action involves the use of this right recognized by the Copyright Act, then it would mean that it would fall under this or that tariff. Would that be a fair result?”
I understand that the cases WERE about tariffs, and that tariffs are an integral part of the copyright regime in Canada, but tariffs are merely an extension of exclusive rights that authors are supposed to voluntarily delegate to collective societies. Just because a collective society adopted a tariff royally approved by the Copyright Board does not create or destroy exclusive rights.
In Supreme Court’s reasons, however, the underlying assumption seems to be that the only purpose of authors’ existence is to provide an opportunity for the collective societies to apply tariffs.
This goes back to the priority of the interests of an individual over the collective.
Finally, Supreme Court further expanded fair dealing. Not only did it endorse the horrific idea of “user rights” previously found in CCH, it went far and beyond by removing even those scarce limitations of what the public could do to exclusive rights of copyright owners if the public feels like it.
In my opinion, most categories of fair dealing should be reduced to presumptions, which a copyright owner can rebut by declaring that the copyright owner does not grant the right to use his works for such purposes that the Copyright Act presumptively considers “fair”.
For example, why do we assume that a library should have the right to carry every single book it feels would benefit the community? Why cannot there be a situation when a copyright owner chooses to disallow libraries to carry the copyright owner’s books? This would happen in dismally small number of cases, so fair dealing would play the role in facilitating the dealings that are supposedly fair. But just because most copyright owners would be OK with such use does not mean that ALL of them would be. Individual rights are not about averages, they are about individuals.
Very seldom a use is truly fair if the copyright owner openly opposes it.
Same goes for the education. Why do we assume that the purpose of educating the next generation of students justifies robbing the current generation of authors and copyright owners of their right to decide if they want to allow teachers to distribute copies of their works to students without paying for it?
In summary, this is a very sad day for Canada. Not because greedy collective societies and big corporations will be able to grab less cash from the “working people” and the “less fortunate among us”. Not because a certain provision of the Copyright Act was interpreted to mean one thing, and not the other.
It is a sad day because it confirms the shift in the paradigm – from protecting individual rights against being infringed by other individuals or the mob, we are “progressively” drifting to laws that are subjecting rights of each individual to the mythical interests of the “whole”.
I have not only studied history, I’ve lived the socialist nightmare. Those of you who think that government-sponsored mass murders can never happen in Canada, think again.
No, just because the Supreme Court of Canada recognized that the fair dealing exception for the purpose of private study also covers non-private study will not be the cause of the government rounding up millions of Canadians and shooting them in the head. But that’s what progressivism is all about. Slowly changing the paradigm. Slowly robbing individuals of their rights… until one day they realize that ALL of their rights are now subject to whether they benefit the rest of the “collective”.
Those cheering today for the victory of the “users” are cheering for their own destruction as holders of individual rights, whatever these rights may be.
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Tags:Small BusinessNew Copyright ActFair DealingCollectivismPhilosophy