Twitter and the Digital Economy Bill

Twitter Is Important

A blog post on Reportr.net has described how “How Twitter added to the #askthechancellors TV debate“. The post describes how “Channel 4 estimated that the debate generated 20,000 tweets over a two-period, becoming the number one trending topic in the UK and London on Twitter, and number three worldwide“. The post went on to mention that “The director of Polis at the LSE, Charlie Beckett, described it as a small triumph for democracy” and how the BBC’s Rory Cellan-Jones suggested that “Twitter, rather than television, could be the place where the issues are really dissected“. I agree – indeed as I suggested in a recent post “Perhaps use of Twitter is starting to become an important part of the political debate, with tweets becoming the twenty-first century’s equivalent to the heckles at election meetings – sometimes rude or irrelevant – but an important part of the democratic process“.

Can We Reuse Tweets?

But are we permitted to reuse tweets as opposed to passively read them in a Twitter client? Can we, as Martin Hawksey did, use Twitter to provide access to Gordon Brown’s Building Britain’s Digital Future announcement with twitter subtitles? Can Twitter archiving services provide public archives of hashtagged events such as the recent Rewired State: Rewired Culture event or the forthcoming JISC 2010 conference or, indeed, the archive of Gordon Brown’s Digital Future announcement which was used by Martin Hawksey to provide his Twitter captioning service?

“What’s the problem?” you may ask “Tweets aren’t subject to copyright. Anyway so  many people and organisations are now reusing tweets that a precedent has been established.  We know we can rip the CDs we own to put on our iPods despite this technically being, in the UK, an infringement of copyright legislation“.

Copyright of Tweets

There are two problems, I feel. The first is that tweets (the product of a creative intellectual activity) are subject to copyright. And the Twitter Terms of Service makes it quite clear that, unlike Facebook, Twitter do not claim ownership:

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 Digital Economy Bill

The other problem, in the UK at least, is the Digital Economy Bill.  In the past week or so I have read about protests against this proposed legislation ranging from the “Open Rights Group demonstrates against the Digital Economy Bill, as parliament confirms date for second reading through to Chris Sexton’s post on “Democracy and the Digital Economy Bill #debill“.

Chris, Director of Corporate Information and Computing Services at the University of Sheffield, has written to her MP in protest against the bill. She feel the bill is bad enough but the main focus of her letter is “the process of ‘wash-up’ – when bills are not debated properly but rushed through as parliament is dissolved by a series of trade offs between the parties“.

The Nightmare Scenario

I agree with Chris’s concerns. But in her letter to her MP Chris, who is also chair of UCISA, pointed out that “UCISA recognises the need to tackle online copyright infringement; as mentioned above our model regulations specifically highlight breach of copyright as a forbidden activity“.  Hmm – so University regulations treat copyright infringement as a forbidden activity.  And although you might get away with citing individual tweets as ‘fair use’ I suspect you couldn’t use this argument if you reuse of large numbers of tweets without the permission of the individual twitterers :-(  So is Martin Hawksey’s Twitter captioning tool infringing copyright? Should his host institution enforce UCISA model regulations and stop this ‘forbidden activity’?  And if the institution fails to act, might the institution have access to the Internet disconnected under the terms of the Digital Economy Bill?

Discussion

But am I correct when I argue that tweets are copyrighted resources?  This issue was raised last year on Mark Cuban’s Blog Maverick blog.  Of particular interest are the comments by Guile, Scott Allan and Brock which illustrate the spectrum of opinion. Guille starts his response by saying:

Is a tweet copyrightable?

Most likely. Under the Copyright Act, 17 USC § 102,
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

Scott Allan reinforces this view: “Technically, it’s copyrighted, whether it’s on Twitter, a blog comment, a discussion forum, USENET, whatever“. Scott, however, points out that “That said, it’s totally a ‘fair use’” issue” and goes on to speculate on what ‘fair use’ might mean in the context of a tweet (although he doesn’t address the issue of ‘fair use’ for a collection of tweets).

In contrast Brock begins his response with the assertion:”There is no copyright protection for a tweet“. Brick goes on to argue that “In copyright law, [a tweet] lacks the ’substance’ of a literary work” and suggests that “Copyright protection does not extend to such minimal expressions that are typical in our society“. I should add, however, that Brock concludes his comments with the notice: “THIS IS NOT LEGAL ADVICE OR COUNSEL; IT IS MERELY INFORMATION“.

Personally I suspect that if you seek legal advice you will be warned that “Case law hasn’t been established; we advise you be be cautious” before concluded “it would be best to seek permission before reusing tweets“. I heard similar suggestions ten years ago on the need to seek permission before linked to a resource. And looking at the Web2Rights toolkit on IPR (PDF format) it seems that you should seek permission.

There are dangers in seeking legal advice, I feel. But what to do? Perhaps we should seek a test case. I wonder if Martin Hawksey would be willing to act as a martyr in the cause of establishing that tweets can be reused without fear of our Web services being shut down?

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