Have you ever found yourself clicking ‘Yes I agree to these terms & conditions’, without actually reading them? Probably yes (everyone does it… even lawyers). Did that include your registration with Twitter? If so, you may not have realized that you agreed to a licence allowing Twitter (and its partners) to use at will any of the copyright-protected content you created and uploaded on their site. But not to worry, the Paris Tribunal, in a 236-page-long decision, “righted wrongs” last month by going over Twitter’s terms and conditions with a (very) fine-tooth comb (see the decision in the French language here: Tribunal de Grande Instance, Décision du 07 août 2018, 1/4 social N° RG 14/07300). The tribunal’s review declared ‘null and void’ most of the clauses challenged by the claimant, including the contract’s copyright licensing provisions for user-generated content.
Users are consumers, Twitter is not ‘free’
The case was brought before the Paris Tribunal by the French Consumers’ Association Union Fédérale des Consommateurs – QUE CHOISIR (UFC), on behalf of the (claimed) collective interest of Twitter’s users. This type of legal action is the closest thing to a class action that exists in France. In this case, UFC’s eligibility to act on behalf of Twitter’s users relied on Article L 621 of the French Consumer Law Code, on the basis of which Twitter users were deemed consumers.
The status of Twitter users as consumers was vehemently disputed by Twitter, which argued that its service is free, making it impossible for its users to be consumers (within the meaning of the Consumer Law). According to Twitter, a person may be regarded as a consumer only if it pays for contracted products and services.
The Paris Tribunal rejected this contention, stressing that whilst Twitter users do not ‘pay’ for the service, using its platform is not gratuitous. The Tribunal emphasised that users consented to their personal information and other data being used by Twitter (and its commercial partners), in exchange for the right to avail themselves of Twitter’s services. Consequently, since Twitter is not free, the consumer protection law does apply to their terms and conditions.
Twitter’s terms and conditions are spread across three main contractual documents: the ‘Terms of Service’, the ‘Privacy Rules’ and the ‘Twitter Rules’ (see here for the current English versions of these documents). In the decision, the Tribunal reviews past and current iterations of these documents in the French language. The judgment examines these contractual clauses, primarily in light of the principles of unfair contract terms and data protection regulations. But ‘droit d’auteur’ (French copyright law) also comes into play, as the Tribunal was asked to assess the lawfulness of the licensing provisions contained in the Terms of Service (ToS) document.
Copyright clauses: “what’s yours is yours”… but also theirs
The ToS features a provision according to which Twitter users license the copyright vested in all of the content (e.g. text, photos, and videos) that they upload onto the Twitter platform and its “ecosystem partners” (i.e. third-party partners). The beginning of the licensing clause reads as follows:
You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours — you own your Content (and your incorporated audio, photos and videos are considered part of the Content). [This is the English equivalent of the clauses in French that were considered by the Court.]
UFC challenged the licensing provision on two grounds. First, the claimant argued that the opening sentence gives the misleading impression that the licencing agreement is narrow in the scope its grants to Twitter whilst in fact, it grants a world-wide, royalty free licence for any use and for all content ever uploaded on the platform, with the right for Twitter to sub-licence such uses to third parties within their commercial “ecosystem”. In my view, the licence granted to Twitter falls short of being an assignment of rights only to the extent that it is non-exclusive. The absence of exclusivity allows users to carry on using and sub-licensing (non-exclusively) their own content as they see fit.
The claimant’s second objection against the licensing clause is based on the French Intellectual Property Code (IPC). UFC argues that the clause is so broad that it contravenes the IPC, which provides for stricter treatment of what can be licensed or assigned than what most common law countries do. These rules were introduced to safeguard the authors’ interests.
It is worth stressing that the IPC does not distinguish between assignments and licences in the applications of these rules. Instead, the IPC refers to the notion of “transfer” (“cession” in the original text), which is neutral and can encompass either a licence or an assignment of rights as understood within most common law jurisdictions.
Thus, the IPC, Article L 1341-1 prohibits the assignment or licensing of future works: “Total transfer of future works shall be null and void”. The IPC also requires that transfers of rights (assignments or licences) be recorded in writing and be very specific as to their content. It is a legal requirement that each right being ‘transferred’ (i.e. assigned or licensed) be separately mentioned in the contract and that the scope, purpose, place and duration of the exploitation for each of these rights be clearly defined in the agreement for the provision to be valid (see, IPC Article L 131-3). In other words, vague blanket assignments of present or future works are null and void in France.
Twitter’s general licensing provision did not meet any of these requirements. As such, the Paris Tribunal invalidated the clause, writing as follows:
The aforementioned clause which grants to the service provider the right to use, for free, any content generated by the user, including content which may be protected by authors’ rights, without specifying in enough detail the content concerned, the nature of the rights transferred and the nature of the commercial uses agreed upon, infringes the provisions of Articles L 131-1, L 131-2 and L 131-3 of the Intellectual Property Code. [Author’s translation.]
The judgment of the Paris Tribunal sends Twitter back to the drawing board on the terms of the copyright licence agreement with its users. For Twitter to lawfully secure the right to reproduce user-generated content, the company will have to be granted a licence as users upload their content (i.e. upon each individual tweet): is this feasible? The alternative, of course, is that Twitter stops using users’ content for commercial purposes or in ways which are not covered by copyright exceptions.
What will other social media platforms do with their T&C’s to comply with French law? Will they seek to apply them world-wide? Only time will tell if the Paris Tribunal’s decision is the start of a new era for the legal treatment of user-generated content.