Many members of the media – in South Africa and abroad – seem to share a popular misconception that anything they find online is in the “public domain” because it is available to the public. As I have pointed out before, this is not the case. The “public domain” means something very specific – and it’s not synonymous with “downloadable”.
In the case of photos, videos or text, it is a reference to content which is no longer subject to copyright protection either because the copyright term has come to an end all because of the copyright owner has effectively waived any claim to those rights.
One reader brought to our attention a complaint he’d made about a journalist at a popular magazine who sourced a picture of him from a Facebook profile and published it as part of an article about him. When he complained about the journalist’s use of the photo in the article (primarily because the journalist obtained the photo his wife’s Facebook profile) he was informed that this was perfectly legitimate because “Facebook is a public domain and anyone can access Facebook accounts if the right privacy settings are not installed”.
Although it is correct that if a Facebook user wishes to restrict access to his or her content or data, the right way to do that would be to limit other people’s access using Facebook’s privacy settings, the rest of this statement is not quite accurate. Whether you can use content depends largely on the extent to which that content is protected by copyright law and whether their content is available under a particular license which permits you to use the content in the way that you would like to use it.
In this particular case, we need to look at two references. The first one is the Copyright Act itself. Photographs are categorised as “artistic works”. In addition to describing which rights a person may not exercise because this would constitute an infringement of copyright, the Copyright Act includes a set of general exceptions from copyright infringement.
When it comes to photographs, the Copyright Act says that “Copyright shall not be infringed by any fair dealing” with an artistic work “for the purpose of reporting current events … in a newspaper, magazine or similar periodical”.
So, as a starting point, using this photograph in a magazine article would possibly have falling within the scope of this exception from copyright infringement. If it was decided that this particular use of the photo failed that test – which has been argued by commentators overseas – however, how does it look from a copyright perspective? This photo was sourced from a Facebook profile and it appears that the photograph was publicly available from their profile and this suggests that the user’s privacy settings were not used to restrict access to this photo. Facebook has a Statement of Rights and Responsibilities, relating to what , the section of the this titled “Sharing Your Content and Information” includes this clause:
When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (ie, your name and profile picture).
This set of permissions is fairly vague and using a photo from a public Facebook album may well fall within it. As with anything particularly personal, it is a good idea to restrict who can see sensitive content using limited sharing options and available privacy settings. Both from a privacy and copyright perspective, this journalist seems to have been entitled to make use of the photo in her article, after all.[Picture – Gezin leest samen een tijdschrift/Parents and children reading a magazine together, Dutch National Archives]