David Quinn, of right wing Catholic lobby group the Iona Institute, spends a lot of time on Twitter, and he doesn’t like what he sees. Last Friday, for example, a lot of people watching the Late Late Show debate on marriage equality tweeted their views on the matter, often in strong terms. So upset was the sensitive Mr. Quinn that he collated an impressive list of these tweets, and posted them on the Iona Institute’s website, under a colourful title which I won’t reproduce here for reasons set out below.
This raises the question of whether Iona (or indeed anyone else) has the right to reproduce a person’s tweet without their permission. Firstly, is a tweet copyrightable in principle? The Court of Justice of the European Union has held, (in Infopaq International A/S v Danske Dagblades Forening) that an extract of as little 11 words is capable of being copyrightable if the elements reproduced are the “expression of the intellectual creation of their author”. At 140 characters, most tweets comfortably exceed that limit, and most (though, alas, not all) can be said to be the expression of the intellectual creation of their author.
So, a tweet cannot be reproduced without the permission of the owner of its copyright. Who is that owner? Under the Copyright and Related Rights Act, 2000, the primary governing law on copyright in Ireland, the author of a work shall be the first owner of the copyright. Being the first owner, the author is free to license that copyright to others, for free or for payment. Twitter’s terms and conditions state
“You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).”
The effect of this clause is that you, the tweeter, own your tweets, but you allow Twitter to do various things with them. This may or may not be a fair deal as between you and Twitter, but the key point is that you still retain rights to your tweets. The right to re-tweet is secured by Twitter, through this license, on behalf of other Twitter users. But just because you give Twitter a license to publish and republish your Tweets, that doesn’t mean that you are giving the same license to anyone else.
In the United States, there exists a doctrine of fair use, which can give a certain leeway to those dealing with the original work of others. This might cover services like Storify, a service allowing users to construct a thread of tweets which will often require the inclusion of the tweets of others in order to make narrative sense. However, no such doctrine exists here.
Which brings us to Iona, and indeed to the many newspapers who regularly incorporate tweets into their coverage, usually without permission. I have argued elsewhere that the mere act of linking does not involve a republication which would require a license from the copyright owner. However, there is no question but that wholesale reproduction of original material is a different story. Tweets clearly fall squarely within the test set out in the Infopaq case. The mere fact that something is on the internet does not, as the newspapers never tire of telling us, mean that it is free for all to do with what they wish. If the Court of Justice of the EU isn’t precedent enough for Iona, I refer them to an authority with which they are no doubt familiar, the Eighth Commandment.