The social media platform Twitter has been reportedly removing tweets at the request of users who believe their content has been wrongfully appropriated. According to Twitter user @PlagiarismBad, Twitter replaced the text of those tweets with an explanation that the tweets were "withheld in response to a report from the copyright holder". This raises the issue of the extent to which retweeting a message on Twitter can actually be construed as copyright infringement. In its Copyright and DMCA policy, Twitter states that it "will respond to reports of alleged copyright infringement, such as allegations concerning the unauthorized use of a copyrighted image as a profile photo, header photo, or background, allegations concerning the unauthorized use of a copyrighted video or image uploaded through our media hosting services, or Tweets containing links to allegedly infringing materials." However, Twitter did not specifically include the written word within these Guidelines.
The fundamental question whether or not a 140 character tweet can be considered eligible for copyright protection can only be decided on a case-by-case basis. In Germany, for example, tweets can in principle be copyrightable as literary works pursuant to section 2 para. 1 No. 1 of the German Copyright Act (UrhG). However, a necessary precondition for such works to enjoy copyright protection is that they came into being through personal intellectual creation (cf. section 2 para. 2 UrhG). The European Court of Justice (C‑5/08) likewise held that an 11-word newspaper article extract may be protected subject matter under the Copyright Directive (2001/29/EC), provided that it is original in the sense that it is the author's own intellectual creation. While a limitation to 140 characters might force the author to think about word choice, sentence structure and the manner in which the subject is presented more carefully, it also restricts her or his creative freedom. Demonstrating the necessary degree of independent intellectual effort can be hard to establish, given that words, considered in isolation, are not as such an intellectual creation of the author who employs them. It is only through the choice, sequence and combination of those words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation.
While many tweets will most likely not enjoy copyright protection, the possibility may not be ruled out that certain isolated sentences, or even certain parts of sentences may be suitable for conveying to the reader the originality of a tweet, by communicating to that reader an element which is, in itself, the expression of the intellectual creation of the author of that tweet. Such sentences or parts of sentences are, therefore, liable to come within the scope of subject matter protected by copyright law. In the absence of copyright protection, all written word sequences (or parts thereof) can be freely retweeted without needing to provide attribution to the original author. Possibly, this also applies to the commercial exploitation of those elements through other media, including books.
Tags: CJEU, Copyright Infringement, Threshold of Originality, Twitter
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