TMT2020: Copying vs. retweet in Spain: what makes the difference? A vision from the © perspective
Retweeting has been in the headlines lately, with attention focused on the withdrawal by Twitter® of tweets that copy others’ content. Although this practice existed before, the recent concern arose when the American writer, Olga Lexell, claimed that other users, instead of retweeting, had “stolen” her humorous tweets and published them as if they were their own. Twitter® withdrew these tweets on the grounds of copyright protection.
In Spain, the key legal issues are to assess whether the practice amounts to infringement of copyright and, if so, whether Twitter® is entitled to remove the “infringing” tweets.
Do tweets benefit from copyright?
In general, Spanish copyright laws extend protection to original works fixed in any tangible or intangible medium, now known or later developed. This definition, together with non-exclusive lists of works of authorship that national laws usually provide for (e.g., literary works, musical works, dramatic works), limits the scope of copyright protection. Thus, we would expect that for tweets to be protected by copyright, they would need to show a minimal degree of creativity. This creativity may be lacking in tweets like “Happy weekend!” but may be present in humorous or funny tweets that are admired by people in such a way that make users to copy and publish them as their own. This is particularly true given the fact that the author of the tweet only has 140 characters to make the tweet appealing.
Who is the copyright holder?
Normally the answer to this question in Spain is quite clear: the user that writes and publishes the tweet in the first place would have the copyright, without being it necessary for the “author” to register the “work” (i.e., the “original” tweet) with any public registry (as protection is granted upon creation). Thus, the author would be the one entitled to exercise rights against any non-authorised use of the tweet. To benefit from and use the service provided by Twitter®, need to grant Twitter® non-exclusive licenses over their tweets and even allow Twitter® to sublicense the rights. This license is mandatory as part of the Terms of Service, which are accepted by users upon registration for the service.
Infringement vs. retweet
Spanish copyright protection normally extends to both “moral” rights and “economic” rights. The former refers to the spiritual element of the work (namely, the right of “paternity” or to be acknowledged as author of the work), whereas the latter deals with the right to carry out an economic exploitation of the work, particularly the rights of reproduction (i.e., make copies of the work), transformation (i.e., the right to create derivative works), communication to the public (i.e., provide access to the work without prior distribution), and distribution (i.e., right to distribute copies of the work by sale, lease, rental).
Copying others’ tweets can be viewed as infringing moral rights in the sense that it precludes the acknowledgement of the author as such. In addition, the right of reproduction and communication to the public are also undermined because the original tweet is copied and made available to the public. Furthermore, one could also imagine a violation of the right of transformation if, for instance, the original tweet is copied with its content being slightly modified. The infringements above occur without prejudice to the fact that original tweets are publicly available on the Internet.
There are also grounds under Spanish law to argue that retweets infringe the economic rights. This is due to the fact that, strictly speaking, when users retweet, they are actually copying and communicating to the public others’ tweets. Although true, retweets are authorized by Twitter® users when they register for the service. Therefore, the difference lies in the assessment of whether or not the use of third party’s tweets has been authorized: whereas copying involves a non-authorised use, retweets are expressly allowed by potential authors (i.e., users of Twitter®) by means of the Terms of Service. By these terms, users also entitle Twitter® to withdraw the infringing tweets, action which, in principle, belongs exclusively to the author.
Even though tweets are publicly available on the Internet, whenever users copy a tweet that is original enough to deserve copyright protection and publish it as their own, they would appear to infringe the author's copyright under Spanish law. Doing so could undermine both the moral and economic rights. By contrast, pure retweets do not constitute an infringement because they result from an expressly permitted use that the author accepts by means of the Terms of Service.