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
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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