Are Tweets Copyright?

First of all, I must make it clear that this is nothing to do with Tweetie Pie,  the canary character from the Warner Brothers series of animated cartoons, usually also featuring Sylvester

Sylvester J Pussycat

the cat. Having said that, it’s a good excuse to include some pictures and I suppose it’s just about possible that there might be some actual connection — if anyone knows the answer to that, do please let me know.

For the purposes of this item, tweets are about Twitter. Most people have heard of Twitter by now. It’s a way of finding out what people are up to and letting others know what you are up to.

Basically, you just type in an answer to the question “What are you doing?” in 140 characters or less, and then these messages, which are called “tweets”, are posted to your profile or your blog, sent to your followers, and are searchable on Twitter search.

But are tweets protected by copyright? And who cares anyway?

At 140 characters or less, tweets are very short. It’s quite likely that the absolutely vast majority of tweets will not fulfil the legal requirements to constitute a copyright literary work under UK copyright law or the equivalent under copyright laws of other jurisdictions, primarily because not enough skill and labour will have gone into writing them (UK legal requirements) or will not be regarded as sufficiently original under copyright laws elsewhere.

Until very recently, the number of words alone and might have been enough to make a reasonably-informed judgment as to whether something is likely to be protected by copyright. However, the European Court of Justice has just decided that as few as 11 words can constitute a sufficient part of a copyright work to be protectable, if the words reproduced “are the expression of the intellectual creation of their author”, and the ECJ went on to say that it is for the national court to make this determination.

Consider the following situations:

• A poet publishes a complete (albeit short) poem, such as a haiku, on Twitter

• A poet publishes a longer poem on Twitter, one line at a time — each lie in being a separate tweet

• An author publishes a novel on Twitter, one sentence at a time (bearing in mind that many years ago, books were often originally published in serial form, in weekly instalments — including works by Charles Dickens — so publication on Twitter might be a way of taking this to an extreme!)

Some of the above individual tweets might not be protected by copyright, e.g. individual sentences from the novel postulated above. But others might well be protected by copyright if they involve sufficient skill and labour or are sufficiently original. And if any individual tweet in such circumstances might not be protected by copyright, would a collection of two, or three, or more such tweets together constitute a protectable copyright work? I think that might well be the case.

Consider the following scenario:

• Someone searches through Twitter for all, or many, of the posts by a particular celebrity, say Stephen Fry, and reproduces them in a book or on a website.

Does that infringe Stephen Fry’s copyright? Does that infringe any rights (such as database right) that might be owned by Twitter, even though they disclaim ownership of Intellectual Property Rights in users’ tweets?

Retweeting is the process whereby someone sends the whole or part of someone else’s tweet either with or without something they themselves have added. Clearly this is a reproduction of someone else’s work and, if the material reproduced is protected by copyright, then questions of copyright infringement arise. However, it’s possible that there might be implied some sort of limited license to “retweet”, as this appears to be a key feature of Twitter.

Twitter themselves are clearly aware that their service has the potential to be used in such a way that it infringes copyright, since they provide a means for resolving disputes in their Terms and Conditions.

I’d be interested to hear other people’s thoughts on copyright and other IP aspects of Twitter — or indeed other social networking websites.