Zoom has attracted significant attention of late—both positive (allowing people to stay connected in distant times) and negative (concerns over platform security and the use of personal information). What has received far less attention, however, is the copyright provision contained in its Terms of Service. It reads:
- COPYRIGHT. You may not post, modify, distribute, or reproduce in any way copyrighted material, trademarks, rights of publicity or other proprietary rights without obtaining the prior written consent of the owner of such proprietary rights. Zoom may deny access to the Services to any User who is alleged to infringe another party's copyright. Without limiting the foregoing, if You believe that Your copyright has been infringed, please notify Zoom as specified here.
Zoom's Acceptable Use Policy also prohibits end users from using the Zoom service to "[v]iolate or infringe any intellectual property or proprietary rights of others, including copyrights."
What does this mean in the copyright context?
Out of the gate, it's important to determine whether you are subject to the online Terms of Service (which we understand applies both for the free version, and the licensed versions), or whether your institution/organization/business has a separately licensed version of Zoom, subject to special terms and conditions.
If the online version applies, Zoom's Terms of Service create a contract between the user and Zoom. If the user breaches the terms of this contract, then Zoom may take action against the user under the law of contract, which may include refusing to provide further services to the user, amongst other remedies.
So, what constitutes a breach of the contract? Clearly, infringing someone else's copyright. The second sentence of Section 11 says so, as well as the Acceptable Use Policy.
But what about posting, modifying, distributing, or reproducing a work without the copyright owner's prior written consent? Of course, domestic laws (including in Canada) often permit certain uses of copyright-protected materials without the need for owner consent. Yes, it's nevertheless possible that these acts would not comply with the first sentence of section 11. However, one has to read Section 11 and the Terms of Service as a whole—from which we take the following:
- The Terms of Service do not specifically say that Zoom will automatically deny continued access to their service; that's reserved for allegations of infringement. While we do not know what steps Zoom would take if they determined use of copyright-protected materials occurred on its service, we would still expect that the response would be informed by whether or not the use actually (or at least allegedly) infringed copyright, at law.
- Posting a copyrighted work without the owner's prior
written consent does not mean a user has breached copyright laws.
There are many ways to share a copyrighted work on Zoom that do not
violate copyright laws; for example:
- exercising rights and exceptions including fair dealing / fair use, that would allow such use; or
- posting insubstantial / de minimis excerpts of a copyright work (like a brief quote from a book).
Moreover, though Zoom denotes the need for the written consent of owners, many domestic laws do not require consent to be in writing for a licensed use to be legally effective.
Interestingly, other major websites have terms of service that recognize that prior written consent is not always necessary. For example YouTube's Terms state:
"If you choose to upload Content, you must not submit to the Service any Content that does not comply with this Agreement (including the YouTube Community Guidelines) or the law. For example, the Content you submit must not include third-party intellectual property (such as copyrighted material) unless you have permission from that party or are otherwise legally entitled to do so."
So, Zoom's policy is quirky in this regard – but may change. Zoom has routinely updated its terms of service—and will likely do so to reflect developments in the law, or otherwise. In fact, the writers have contacted Zoom to encourage them to address this issue, so let's hope it comes sooner rather than later.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.