A noted journalist tweeted recently that social media belongs in the public domain. [Rappler CEO] Maria Ressa was reacting to the tweet of [DZIQ busines reporter and photographer] Erwin Aguilion asking for feedback about a tweet by Rappler that used a photo by the latter on their site.
Atty. Rod Vera
was “Social networks are in public domain, something to keep in mind.” I was wondering what this almost cryptic text meant. [Rappler later clarified their actions with a statement
on their Facebook account]
Since I am not a mind reader, I will just try to define what public domain means in relation to photographs posted on social networks.
What is public domain? Normally, public domain is associated with free lands of the government. I submit that land is a form of property and copyright is a form of intellectual property. I further submit that photographs are property because photographs are part of the copyrighted realm.
The Philippine Supreme Court, in a case involving intellectual property rights, defined public domain as a realm where ideas exists for the free use of the public (Pearl & Dean vs. Shoemart, G.R. No. 148222. August 15, 2003).
Was this what Ms. Ressa was trying to say? Anything in the public domain is free to use by the public? If she was, then she would be correct. But...
Since we have established that photographs are considered property, do they become part of the public domain once posted on social networks? Let me try to convince you that the answer is in the negative.
Photographs are one of the listed forms of literary and artistic works that possess copyright protection from the moment of their creation (Sec 172, IP Code of the Philippines). Simply put, photographs become the property of their owner/creator once they are created and, as a form of property, photographs can be controlled by their owner. Much like buying a car, once it is paid for and its ownership transferred, you have the right to select who may drive that car. Without consent or authorization, any driver is considered a thief.
How does one lose control over property? By relinquishing ownership, of course. There must be a sale or at least an agreement to that effect. Is posting a photo on Facebook, or Twitter, or even a blog an act of abandoning ownership? What do you think?
Since the creation of photographs as property is an operation of law, it is also the law that determines the reverse. According to Section 213.5, photographs lose their copyright protection 50 years after the first publication. Once protection is lost, then that is when the photograph falls in the public domain. Not after 50 re-tweets or 50 views.
Another method, is when the owner/creator waives any and all copyright. But such a waiver must be written. One cannot assume a waiver exists. If there was an implied waiver by posting, I am sure Rappler's website would be devoid of photographs.
Posting photographs on social networks is not an implied or express manifestation of a waiver of copyright. At the most, there is a license granted to the social network to make the photograph viewable to the public. If you read the terms of service by the social networks, they do respect the intellectual property rights of others. They even go so far as to take down or remove material if there is a report of abuse of intellectual property rights.
When it comes to property in whatever form, public domain should not equate “being publicly available.” If it was re-tweeted, then it’s still in the sphere of Twitter where the license exists. The same goes for Facebook. But when a third party uses the property in another site or form, then it is there that copyright infringement may lie.
More so, if the third party is a news website. News agencies know their limitations and are even given certain exemptions under the law. They should not hide under their cloak [of exemption] when abusing the rights of others.
In summation: photographs are intellectual properties. Their use and control are for the owner to decide. A photograph only enters the public domain when the copyright ceases.
Social networks are not mediums where rights are lost. – KDM, GMA News
Atty. Rod Vera is a managing partner of the Vera and Associates law firm. He is an intellectual property lawyer, litigator and copyright lecturer who obtained his Masters of Laws from the University of San Francisco, specializing in Intellectual Property and Technology Law. This piece originally appeared on the Manila Speak blog. We are re-posting it here with the author's permission.