Copyright infringement on Facebook occurs when your original material is used without your consent. Infringement can be as simple as uploading a video that includes footage from your work or posting a photo that you have taken. However, even if these infringements seem small, Facebook activity is not a loophole for avoiding copyright infringement. This article explains what copyright infringement is and the steps to consider when you encounter it on Facebook.

Which Material is Protected?

In Australia, copyright is an automatic protection. This means that you do not have to apply for protection for your work, it occurs as soon as your work takes a physical form. It protects:

  • music;
  • art;
  • literature;
  • dramatic works;
  • films;
  • broadcasts, and
  • sound recordings.

However, it does not protect mere ideas or concepts.

For example, J.K. Rowling had no claim to the idea of ‘Harry Potter and the Philosopher’s Stone’ until she penned the first chapters. Once the story was written down, the work gained copyright protection.

What is Considered Infringement?

You have exclusive rights over your material. These rights allow you to reproduce your work or communicate it to the public (such as by posting it on Facebook). Where someone else uses a substantial part of the work without your authorisation, they are infringing on your rights.

One of the most prolific examples of copyright infringement on Facebook is the re-posting and re-uploading of videos without permission. Sometimes, the violation is obvious. However, original videos are sometimes collated into ‘compilations’ and may be harder to detect.

Is All Unauthorised Use Infringement?

To infringe copyright, the infringer must use a substantial part of your work. A substantial part is a vital or important part of the material. It need not be a whole chapter or an entire video, but rather, a key aspect of the material. It must be central to the work’s originality and recognisable as the original work.

In addition, there are exceptions to copyright infringement. Copyright material can be used without your consent for:

  • research or study;
  • criticism or review;
  • parody or satire; and
  • reporting the news.

In addition to satisfying one of the purposes listed above, the use of the copyright material must be ‘fair’. This is determined on a case-by-case basis.

While the extent of this exception can be complicated, an example of fair use might be reposting an article to critique the work.

However, simply reposting the article to attract others to critique it is unlikely to be deemed as ‘fair’.

How to Deal With Infringement

The best way to approach infringement will depend on a number of factors. These include the nature of the infringement and who has infringed your work. It may be necessary to combine the strategies below to get the best result.

1. Contact the Infringing Party

If you want the material taken down, try and reach out to the infringing party. Sometimes, all that is needed is a demonstration of your ownership of the work and a request to have it removed.

It’s a good idea to take a screenshot of the infringement and bookmark the page in case the other party denies the allegation. Sometimes, approaching these situations amicably but firmly can lead to a speedy resolution.

2. Facebook’s Dispute Resolution Process

Facebook has an online form that you can use to submit a claim of copyright infringement. You will need to have the following information:

  • your own details;
  • a description of the copyrighted work;
  • a description of the infringing content or post; and
  • information about the location of the material (such as a URL).

After you have submitted the form online, Facebook may send a response requesting more information. If they remove the content as a result of your report, the other party will receive your contact information. This means that the person who posted the material may reach out to you if they think Facebook should not have removed it.

3. Cease and Desist Letter

A cease and desist letter is a formal letter that shows the infringing party that you are taking the matter seriously. If the infringement is particularly serious or the infringer has profited off your work, you may want a lawyer to draft the letter.

A cease and desist letter does not begin legal proceedings. Rather, it attempts to resolve the dispute without court action. It asserts the gravity of the situation and your legal position as the copyright holder. However, it may also lead to further negotiations or the commencement of legal proceedings. Either way, a properly drafted cease and desist letter will give you a greater chance of a successful outcome.

4. Going to Court

Going to court may be necessary if negotiations fall through and a cease and desist letter is ineffective. Before going to court, it’s important to think seriously about what you want. Legal proceedings are expensive and, in some cases, the cost of pursuing a claim may outweigh the benefits of a successful claim.

The outcomes available to you as a result of copyright infringement include a:

  • court order for the infringer to remove your material (this is known as an injunction);
  • payout of compensation (this is known as damages); or
  • payout of any profits that the other party earned from infringing your copyright.

In most cases, damages are difficult to prove because it can be hard to establish how much money you lost as a result of the infringement. On the other hand, a payout of profits allows you to claim the profits that the defendant gained from the infringement. This may be appropriate in instances where the re-poster gained income as a result of the material ‘going viral’ and amassing millions of views.

Key Takeaways

Copyright infringement on Facebook occurs when someone uses your protected material without your consent. Identifying copyright infringement in the digital age can be complex.

However, combining Facebook’s dispute resolution process with a cease and desist letter can be an effective way to resolve the issue at hand. If you need assistance with copyright infringement, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

Sam Burrett
If you would like further information on any of the topics mentioned in this article, please get in touch using the form on this page.
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