By Shaya Silber and Gil Zvulony, Toronto Internet Lawyers

What are the rules of ownership for content that users upload on social media sites, such as Facebook and Twitter?

Once an idea is expressed in a fixed form, copyright ownership is immediately vested in that work. The copyright protection is granted under the Copyright Act, by default.  No registration is required (though copyright registration may be worthwhile in some circumstances).  Therefore, when you take a picture, record a song, write a note or produce any other kind of content, you are automatically granted copyright ownership in that work (assuming it has not already been created by someone else, in which case the person who expressed it first in a fixed form would be the copyright owner, unless done in the course of employment).

Many people don’t bother to read the terms and conditions when signing up for a social media site such as Facebook. The terms and conditions govern the legal relationship between you and the service provider.  Terms of Use agreements are legally binding.   In many instances, when you agree to the terms, you are granting broad permission to use your content. For example, when a photographer, whose photographs may be a valuable source of income, uploads the photographs onto Facebook, that person is actually granting permission for Facebook to use the photos in a relatively broad manner.

Let’s examine the legal terms and conditions on the popular site Facebook.  Facebook’s terms (Date of Last Revision: April 26, 2011) regarding the “Sharing” of your content states:

You own all of the content and information you post on Facebook [..]

Facebook is stating here that you retain the copyright ownership that you have in any material that you upload to Facebook.  This might lead some people to believe that they retain all their rights with respect to the content they upload.  That is not the case.  All this clause really says is that Facebook cannot stop you from using the content that you provide.

The permissions that you give Facebook are granted in the following clause:

For content that is covered by intellectual property rights, like photos and videos (“IP content”), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (“IP License”).

This section outlines the permission that you give Facebook for your materials. You grant Facebook the “non-exclusive” right to use the material. This makes sense since you are retaining ownership over the content, Facebook’s rights to your content act in conjunction with your rights to the content, thus Facebook’s non-exclusivity.

What Facebook can do with your works is unclear. The Terms contain the word “use” which is very broad. “Use” can mean any number of things, such as selling your photographs, or publishing your status updates in a book or magazine.

Facebook’s Terms go on to say that you give Facebook the “transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on […] Facebook.”

You grant Facebook the right to “transfer” and “sub-license” your content. Facebook’s right to “use” your content is a transferable right which Facebook can transfer to any party they wish. Not only can Facebook sell your photograph, they can sell the right to sell it.  In other words they can sell your photo to a stock photo agency who can then sell it to their customers.

Finally, the rights to your content that you grant Facebook are royalty-free. This means that Facebook can use all of your content for free. Facebook does not have any financial obligation to you.

All of the above permission that you grant Facebook lasts until you delete the content or close your account, “unless your content has been shared with others, and they have not deleted it.” Therefore, if you or a friend share content that you upload to Facebook, and you wish to subsequently delete your account, Facebook still retains the right to use that content as long as it still remains on an existing member’s profile.

Interestingly enough, Facebook’s Terms of Use do not have a waiver of Moral Rights/Author’s Rights clause.  This means that Facebook would be restricted in certain kinds of modifications of photographs and other content.  It also means that in most circumstances an author or photographer name could not be removed from a work.  See our article on Moral Rights/Author’s Rights to understand this right.

Common social networking contracts can be daunting and confusing.  Most people do not bother taking the time to review a website’s terms of use.   Fortunately, we can help.  If you have any questions regarding the terms of use for any online service that you use, please do not hesitate to contact us for some confidential legal advice.

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