Viral content, legal battles: Unravelling intellectual property in user-generated content

By Omoruyi Edoigiawerie Esq

Social media platforms have transformed into virtual communities where individuals can create, share, and engage with content seamlessly. From tweets and photos to videos and memes, users contribute a vast array of content, effectively becoming co-creators of the digital realm.

This democratisation of content creation has not only given a voice to the masses but has also triggered a paradigm shift in the way we perceive an intellectual property.

In the landscape of social media, user-generated content has become a driving force, shaping the way we share, communicate, and express ourselves online.

As this phenomenon continues to thrive, questions surrounding Intellectual Property Rights have become germane, raising important considerations for both creators and platforms. It is therefore important to discuss User-Generated Content the intellectual property rights that flow from it and the implications in the social media landscape.

*Introduction

User-generated content refers to any form of content—text, images, videos, reviews, etc.—created and shared by users rather than brands or organisations. Initially confined to forums and early blogging platforms, it has evolved significantly, propelled by the proliferation of social media networks. It encompasses a broad spectrum of content that reflects diverse perspectives, experiences, and creativity from ordinary individuals rather than professional content creators.

*Examples of user-generated content across various social media platforms

            Instagram: Users share personal photos, videos, and stories, often influenced by lifestyle, fashion, travel, or personal interests.

            YouTube: An array of user-created videos, including vlogs, tutorials, reviews, and entertainment content, dominate the platform.

            Twitter: Short-form content such as tweets, hashtags, and threads, enabling real-time discussions and opinion sharing.

            TikTok: Short, engaging videos showcasing talents, creativity, and trends, often leading to viral sensations.

*Impact and role in modern digital marketing and communication

User-generated content has emerged as a pivotal force reshaping digital marketing strategies and communication dynamics, it is perceived as more genuine and trustworthy than branded content, as it emanates from real experiences and peer-to-peer recommendations.

It is also pivotal to driving Engagement and Interaction, by fostering audience engagement and interaction, driving conversations, brand advocacy, and community building.

We also cannot overlook the fact that it influences purchasing decisions significantly by influencing consumer behaviour, serving as a critical factor in purchasing decisions.

Indeed, the evolution of UGC reflects a paradigm shift in content creation and consumption, placing users at the centre of content production, distribution, and consumption, thereby shaping the digital landscape profoundly.

This transformation not only revolutionizes how content is created and consumed but also challenges traditional marketing approaches, urging brands to embrace authenticity, engagement, and inclusivity in their strategies.

*Intellectual property rights and user-generated content – Balancing the Act

Intellectual Property Rights encompass the legal protections granted to the creators of original works. Traditionally, these rights include copyrights, trademarks, patents, and trade secrets. However, the digital age has introduced new challenges and nuances, especially in the realm of social media.

*Who owns the content – the user or the platform?

Generally, users retain copyright ownership of the content they create and share on social media platforms. However, platforms often obtain extensive rights through their terms of service agreements, and this is why I advise that people read the fine print.

Platforms often require users to grant them a broad license to use, modify, and distribute the content uploaded. This license usually includes the right to sublicense content to other users or third parties. This is what is referred to as user licensing.

User Licensing occurs when users upload content to a platform, they grant the platform a license to use their content based on the platform’s terms of service. This license may vary in scope, duration, and purpose, and could potentially limit users’ ability to control their content once shared.

However, there is also Permission Management, here some platforms allow users to set specific permissions regarding their content, such as privacy settings or limitations on its use by others.

*Platform policies and their impact on IP rights of user-generated content

Terms of Service: Each social media platform has its terms of service that outline how user-generated content can be used by the platform and others. These terms often contain clauses that grant the platform extensive rights over the content uploaded.

Impact on Users: Platform policies can significantly impact users’ understanding of their rights and control over their content. Users might not fully realize the implications of the rights they grant to the platform when agreeing to the terms of service.

These considerations highlight the complex interplay between users’ intellectual property rights and the terms established by social media platforms. While users generally retain ownership of their content, the terms of service agreements often grant platforms considerable rights to utilize and distribute this content, sometimes without explicit user consent for each usage.

*Legal considerations

One of the primary concerns in the User-Generated Content sphere is copyright. When users upload content, they may unintentionally infringe on the copyrights of others or grant licenses to platforms that go beyond their initial intent. Social media platforms often include clauses in their terms of service agreements that grant them broad rights to use, distribute, and modify user-generated content. This raises the question: to what extent do users retain control over their creations?

In Nigeria for instance the Copyright Act governs copyright protection. Recent amendments have attempted to address digital rights, including those related to User-Generated Content. However, there are still challenges faced by content creators and social media platforms in protecting IP Rights

For content creators, they often face difficulties in safeguarding their works due to the ease of digital replication and distribution. Lack of knowledge about IP rights and the complexity of legal procedures also pose significant challenges.

While social media platforms struggle to balance user freedoms with the responsibility to enforce IP rights. Automated content moderation systems often fail to accurately identify and protect original content, leading to instances of copyright infringement.

It is also important to point out that international variations in IP laws have substantial implications for user-generated content on global social media platforms. This is predicated on the fact that due to variations in IP laws across countries, it could become difficult to harmonize IP laws globally. This Impact on user-generated content as global platforms are compelled to navigate differing legal standards on content usage and distribution, often leading to complex content moderation policies that vary based on users’ geographical locations.

The evolving nature of user-generated content necessitates continual adaptation of legal frameworks to address emerging issues, ensuring a balance between creators’ rights and the growth of digital platforms. Social media platforms must also refine their copyright policies to better protect both users and original content creators. This should involve implementing content recognition technologies, streamlining reporting mechanisms for copyright infringement, and fostering transparency in content attribution.

*Looking ahead: Balancing innovation and protection

As social media continues to evolve, the delicate balance between fostering innovation and protecting intellectual property rights remains a central challenge. Striking this balance requires collaboration between users, platforms, and regulatory bodies to ensure a fair and sustainable ecosystem for all stakeholders.

User-generated content has revolutionised the way we interact with the digital world, giving rise to new challenges in the realm of intellectual property rights. As social media platforms adapt and regulatory frameworks evolve, it is crucial to find a harmonious balance that empowers creators, protects their rights, and sustains the dynamic landscape of user-generated content in the social media space.

*Omoruyi Edoigiawerie is the Founder and Lead Partner at Edoigiawerie & Company LP, a full-service law firm offering bespoke legal services with a focus on startups, established businesses, and upscale private clients in Nigeria.  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. His firm can be reached by email at hello@uyilaw.com.