Setting the Stage
Freelance authors are on the rise. According to a 2017 survey, 50.9% of the US population will be freelancing in ten years if the current trend continues. With the rise in freelancers, there are growing concerns about freelancer rights and the bargaining power of large media publishers. Professor D’Agostino has done extensive research in this area and in her book titled, “Copyright, Contracts, Creators: New Media, New Rules” she sheds insight on this issue by focusing primarily on freelancers in the newspaper and magazine industries. Her insight equally applies to other content industries, such as photography, where photos are increasingly created and shared in the digital world.
Professor D’Agostino mentions that granting exploitation rights to owners of original works is one of the key objectives of copyright law. Yet, it seems like social media platforms such as Instagram and Facebook are essentially granting themselves broad licences via their terms and conditions. Professor D’Agostino reiterates this point when she says, “The current proliferation of digital technologies expands the publisher’s powers and puts the supposed objectives of copyright law under strain.” At first glance, it might seem like social media is a solution to this problem by giving users the opportunity to post images and, depending on their follower base, have the opportunity to make money for each post. A freelancer’s dream, right? Not exactly. It turns out that Facebook and Instagram’s terms and conditions contain that scary licence provision that not many users know about.
Terms and Conditions: A Mandatory Licence
It seems as though social media platforms are a good example of the need to raise awareness of the non-exclusive licence. Take Instagram, for example, their terms and conditions include the following:
“… you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly (“private”) will not be distributed outside the Instagram Services.”
It begs the question, why would Instagram need to modify a post, add to it, or distribute it on another media channel? One can understand why public performance is required given that Instagram is a platform whereby it gives creators the means to display their content on a global scale. Yet, with social media influencers making thousands per post, the fact that Instagram can modify it and display it in any media formats through any media channels seems problematic when content creators want to be able to still have control over the content that is providing them income.
Facebook’s terms and services include the following:
“… you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings).”
This is an another example of a broad licence, with the main concern being the lack of control over the distribution of the content. Ultimately, this may be the risk users need to take when displaying content over social media.
The Price Creators Pay
All in all, although these broad licences seem scary they are the reality of the digital age. These social media platforms definitely need a licence to carry out their intended functions, but do they need to be this broad? One can only imagine a situation where Facebook creates a derivative work using one of your photos. Much like freelance journalists are vulnerable to publishers as independent contractors, users of Instagram and Facebook that post content are vulnerable to the social media powerhouses. Although there is no monetary price to post their content, they pay with a licence.
If, by chance, a user does read the Instagram terms and conditions in their entirety and decides they do not want to grant such a licence, they are free to not engage with the platform. The tradeoff is that they might miss out on potential profits and global exposure. A solution? Creators may wish to resort to a private website platform, but there is no guarantee that they will not require a similar type of licence. Until protective measures such as legislation or case law come to the rescue, to move forward in the digital age, creators will have to be prepared to hand out licences along the way.
Written by Lauren Chypyha, JD Candidate 2020, enrolled in Professors D’Agostino and Vaver 2019/2020 IP & Technology Law Intensive Program at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.
 Elaine Pofeldt, “Are We Ready For A Workforce That is 50% Freelance” (17 October 2017), online: Forbes
 Giuseppina D’Agostino, Copyright, Contracts, Creators: New Media, New Rules (Cheltenham: Edward Elgar Publishing Limited, 2010).
 Ibid at 16.
 Ibid at 3.
 Facebook, “Terms of Service” (31 July 2019), online: Facebook < https://www.facebook.com/terms.php>
 D’Agostino, supra note 2 at 8.