Copyright issues on social media

It is common practice for journalists to use social networks to gather photos for publication in newspapers. This activity was based on the premise that online photos are not protected by copyright since they were uploaded to the internet, a public domain. The court’s decision related to a young man who uploaded photos onto his own Facebook wall and subsequently found some of his photos published in a national newspaper without reference to him and without his authorisation.

The court first examined the issue of copyright ownership. The newspaper argued that there was no evidence of the young man’s ‘ownership’ because there was no mention of his name on the photos. The newspaper alleged that publishing photos on someone’s own Facebook wall would not be sufficient to prove ownership. The court found that, even though uploading photos to your own wall on social networks is not per se evidence of ownership, in the absence of evidence to the contrary such uploading may be considered as an assumption of ownership in favour of the owner of the wall, in accordance with the principles set out in article 2729 of the Civil Code.

The second issue that the court examined related to the suitable protection for the photos, ie, whether such photos were protected by copyright or by ‘neighbouring’ rights, which are more limited than copyright. In order to decide which protection should apply the court had to determine whether the photos were ‘creative’, an expression of the author’s personal vision and capable of arousing emotions going beyond the depicted image, or ‘simple’, mere representations of reality. Only ‘creative’ photos are protected by copyright; ‘simple’ photos are protected by neighbouring rights. In the case at issue, the court decided that the photos were not sufficiently creative and therefore were protected by neighbouring rights.