Monday morning. Always a grumpy time, but never more so than when I log on to Facebook and find all of my friends posting silliness like this:
In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, professional photos and videos, etc. (as a result of the Berner Convention).
For commercial use of the above my written consent is needed at all times!
(Anyone reading this can copy this text and paste it on their Facebook Wall. This will place...them under protection of copyright lawsBy the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook's direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).
Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates...
There are so many things wrong with this, I don't know where to begin. I hastily posted a quick few lines about why these Facebook declarations are actually useless, from bed, on my iPad, which was quickly liked, commented on and re-shared. So I thought, now that I'm awake and had a cup of coffee, I would elaborate a bit more on why this particular Facebook declaration is crap, and also debunk some of the concerns about what the evil Facebook overlords are doing with your content.
1. Copyright Exists in Original Works, Whether You Declare It or Not.
Copyright automatically exists upon the creation of an original work, and in most cases will vest in the creator of that work. You don't need to "declare" your copyright in order to have copyright in your original photos, Facebook statuses and other copyrightable works that you post on your Facebook status.
2. It's the "Berne" Convention, not the "Berner Convention," and it's not new - it's been around since 1886. Yes, 1886.
So this Facebook declaration seems to suggest that as a result of some new convention, you now have copyright in your Facebook data. Um, no. The Berne Convention for the Protection of Artistic and Literary Works was first enacted in 1886, in Berne, Switzerland (get it?!), and under the convention, copyright is AUTOMATIC - no declaration or registration required. Which kind of defeats the purpose of the whole "I'm declaring this as a result of the Berne Convention." By the way, international conventions don't have the force of law until they're ratified by an individual nation - i.e., until Canada enshrined its principles in the Copyright Act. Which we did. A long time ago.
3. Copyright Protects an Original Work, Whether it's for "Commercial Use" or Otherwise.
This Facebook declaration seems to suggest that you only need to give consent for "commercial use." Err, that's great, but aren't you worried about non-commercial use, too, if you're posting this on your Facebook wall? Anyway, just so we're all clear - under copyright law, you have to consent to ANY kind of use, which brings me to me next point...
4. In agreeing to Facebook's Terms of Service, You've Already Agreed to Facebook's Use of Your Data.
When you signed up for Facebook, you had to agree to Facebook's Terms of Service (well, Facebook calls them the "Statement of Right and Responsibilities"), which are available for your reading pleasure here. (oh, and - these "new guidelines" that apparently prompted this declaration? You'll notice that Facebook's Statement of Right and Responsibilities, i.e., its terms of service, were last revised June 8, 2012. So, yeah - not recently. What the heck are these new "guidelines" that prompted the declaration? I have no idea.)
Here's what you agreed to: "For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it." So. You've already given Facebook just about as broad a license to your intellectual property as you can possibly give - subject to whatever privacy or application settings you set on your account.
This is your contract with Facebook. By accessing and using Facebook, you agreed (and continue to agree) to this contract. There are more details in Facebook's Data Use Policy about how Facebook uses your information, including the following: "We only provide data to our advertising partners or customers after we have removed your name or any other personally identifying information from it, or have combined it with other people's data in a way that it is no longer associated with you."
Facebook's Data Use Policy also says clearly: "While you are allowing us to use the information we receive about you, you always own all of your information. Your trust is important to us, which is why we don't share information we receive about you with others unless we have:
- received your permission;
- given you notice, such as by telling you about it in this policy; or
- removed your name or any other personally identifying information from it."
5. Your Posting of a Notice on Your Facebook Wall Has No Legal Effect. The Only Remedy Available To You If You Don't Like Facebook's Terms? DON'T USE FACEBOOK.
So, you've already got a contract in place with Facebook. The only way you could amend it (change it, in plain people speak) via Facebook status would be if you and Facebook agreed in your contract that you COULD amend the contract this way. Guess what? No dice. Once again, refer to the Facebook Statement of Rights and Responsibilities. Section 14 talks about how amendments to the contract are made. Funny - declarations in Facebook statuses aren't covered! In fact, Facebook is the only party to the contract permitted to make changes. Even better, you agree by your continued use of Facebook to any amendments Facebook may make to the Statement of Rights and Responsibilities. So maybe you should give that Statement a read sometime. And then, you know, if you don't like the terms - DON'T USE FACEBOOK. That's the only option available to you.
6. The Content Of Your Profile Ain't Private. Unless You MAKE It Private.
Refer again to Facebook's Data Use Policy. Your profile is only private to the extent that you make it so, and to the extent that you haven't agreed to Facebook using or sharing some of your information.
7. Rome Statute? Uhhh...Do You Mean the Rome CONVENTION?!
The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations is also old news - it was originally enacted in 1961 and Canada become a signatory to this WIPO (World Intellectual Property Organization) Treaty in 1998. It did a lot of things, but mainly it gave performers rights in reproductions of their performances, and was a response to new high-falutin' technologies like VHS video recorders and cassette tapes. So...yeah. Again, you can't enforce an international convention personally - your country has to ratify it by enacting the provisions under local law. So, for Canadians, you'd be talking about the Copyright Act. There is a thing called the "Rome Statute," but it has nothing to do with intellectual property or privacy. As my friend Monica Leonardo, a human rights lawyer, pointed out: "Apart from provisions for the protection of the victims and witnesses and their participation in the proceedings at the International Criminal Court, the Rome Statute has no references to privacy whatsoever...and certainly not regarding the punishment of privacy violations by Facebook."
8. UCC 1 1-308-308 1-103?! WHAT IN THE WHAT? This is a reference to the Uniform Commercial Code. It's RECOMMENDED laws for how STATES (i.e., COUNTRIES) do business with each other. Right. Definitely applicable to my Facebook status update about my cat.
9. An "open capital entity" is not a thing.
I think what the Facebook declaration-mongers are trying to get at here is that Facebook is now a public company, with securities traded on a public stock exchange (NASDAQ). As a public company, the buying and selling of shares of Facebook is open to Joe Public and as a result, Facebook must comply with U.S. securities requirements, such as reporting its financial results to its investors. Becoming a company with publicly-traded stock does not somehow mean that Facebook users' content is available to all investors or that Facebook is now publishing your relationship status on the stock exchange. In 6 years of corporate/commercial practice (including a stint as a securities lawyer), I have never heard the term "open capital entity."
So, at the end of the day, I will say this. I'm not trying to make you feel stupid about your post. You posted the Facebook declaration on your Timeline because it raised some concerns for you, about privacy and intellectual property rights. And rightly so. You should be concerned about those things. Good on you. But guess what? In using social media sites like Facebook, you've already agreed to give up some of those rights. If you're concerned, read your contract. And if you don't like the terms of your contract, don't use Facebook.