When conducting professional activity on social media, we need to exercise utmost care not to infringe the intellectual property rights of third parties – in particular copyright. It is also essential to comply with the regulations imposing the obligation to properly mark advertising or self-promotion content on social media.
Copyrights
What we should pay special attention to is the copyrights to the photos, graphics, musical or visual works that we post on social media. Each of these works may be covered by copyrights if certain conditions are met. Under the Polish law, the subject matter of copyright is each individual creative work, embodied in any form, regardless of its value, designation, or medium of expression (work). The essence of copyright protection is twofold:
- moral rights; and
- economic rights.
Moral rights
The moral rights of an author protect the perpetual, inalienable, and non-transferable link between the author and their work and, in particular, their right:
- of authorship;
- to put their name or pseudonym on a work, or to communicate a work anonymously;
- to protect the integrity of the content and form of a work and its fair use;
- to decide to communicate a work to the public for the first time;
- to monitor the use of a work.
Economic rights
Economic rights include the exclusive rights to use or dispose of a work in all fields of use, and to receive remuneration for the use of a work. These rights are transferable and inheritable. In accordance with Polish law, they generally last 70 years. After this period, the work enters the public domain and it can then be used freely. Importantly, even if the author is anonymous, it does not mean that he has waived the copyright to the work.
Using works to which the copyright belongs to a third party on social media is generally prohibited without their consent. Therefore, we should always acquire either economic rights or a license to use a work. However, there are some exceptions when this is not necessary:
- the right to quote; or
- permitted private use.
Quoting works: legal justifications and limits
As far as the right to quote is concerned, it is permitted to quote –- in works constituting a self-contained whole – fragments of widespread works and widespread works of art, photographic works or small works in their entirety, to the extent justified by the purposes of the quotation, such as explanation, polemic, critical or scientific analysis, teaching or the laws of the genre or creativity.
Private use
When it comes to permitted private use, in practice this means that we can share a work to which we do not have copyright, e.g. with our family and friends. In this case, the social media account must have privacy settings such that the content is available only to our "friends." This exception will not apply if we are dealing with a social media account to which all users have access.
Music
Music is often used in social media posts. According to Polish law, recording rights consist of:
- rights of the composer and author of the lyrics (copyrights),
- rights of a singer, band or music producer (so-called rights related to artistic performances),
- rights of the recording producer, most often the music label (so-called rights related to phonograms).
To use music in advertising, we must obtain a license for all of the above mentioned rights, i.e. the rights of the authors, performers and producer of the recording. It is also necessary to ensure that the artists agree to the use of their work in an advertising context - to synchronize the song or artistic performance with the advertisement. Different types of social media platforms provide tools that help influencers use music legally. However, each of these platforms works slightly differently, so we must make sure that we are using a database intended for the commercial use of music in social media – if we have a professional profile.
Correct marking of advertising content on social media
There is also an obligation for influencers to properly mark advertising content. Failure to distinguish advertising materials from non-commercial content is contrary to ethical principles and legal regulations. In Poland, there are no clear regulations in this respect included in one legal act, and these provisions are currently scattered in various legal acts. The Polish Office of Competition and Consumer Protection has published guidelines to systematize these rules and help users navigate them.
Users of social media should always be notified when dealing with:
- advertising of a product or service (paid cooperation); and
- self-promotion (advertising your own brand).
Additionally, materials that are not neutral should always be marked appropriately. This may be, for example, a situation where an influencer receives a one-time gift from a brand, an invitation to an event or the free test of a given product. Even if these situations cannot be classified as classic advertising or sponsoring, they are not a neutral message illustrating the influencer's private life. Accordingly, the followers should be reliably informed about the circumstances in which such material was created.
It is important that the markings have the so-called two-level nature, so that they use both the functionality of a given platform and also contain additional commentary prepared on their own and placed, for example, in the description of a photo or video or the narration of audio material.
It is important to ensure that the markings of advertising materials are legible, unambiguous and understandable. These criteria will be met when the designation is:
- placed in a visible place,
- distinctive compared to the rest of the content,
- written in a clear and large enough font,
- in Polish, if the profile is run in this language,
- using terms clearly indicating the commercial nature of the publication.
It should be emphasized that any violation of the above rules may be considered an unfair market practice, as well as be classified as an act of unfair competition, and result in both public law (administrative) and civil law consequences.
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.
