#thispostiscopyrighted

Twitter is one of the most popular mediums to spread opinions and messages nowadays. Just think about Donald Trump’s Twitter account which has become his most important tool to reach millions of people.

This raises the question, whether a tweet can be protected by copyright - meaning that if you posted something particularly funny, nobody else would be allowed to use it. Or, in contrast if it was not protected, others could use your post for commercial purposes. The distinctive feature of Twitter in comparison to other social media platforms and blogs is the limited number of characters that users have available for their posts, which makes the postings rather short.

Twitter’s Terms of Service imply that tweets can be protected by copyright by providing a Copyright reporting form and giving every user the possibility for a report. Twitter therefore recognizes the authorship of users (but at the same time grants itself a right of use for every post one makes).

For copyright infringement a tweet must be eligible to be protected by copyright in the first place. A tweet could be protected as a ‘literary work’. To qualify for copyright protection a work must be original “in the sense that it is its author’s own intellectual creation”. The question is, however, whether tweets of 140 (or now 280) characters reach the stage of originality to be copyrightable. It is important to note that copyright does not protect the idea, but only the expression. With a short post containing only this little amount of characters, it can become difficult to distinguish between idea and expression. 

In Newspaper Licensing Agency Ltd v Meltwater Holding BV the UK High Court (affirmed by the Court of Appeal) has ruled that a newspaper heading may be protected by copyright, following the ECJ decision Infopaq according to which “an act occurring during a data capture process, which consists of storing an extract of a protected work comprising 11 words and printing out that extract” can be copyright infringement.

When it comes to tweets, case law is rare. In 2017 a German District court (LG Bielefeld, case no. 4 O 144/16) took on such case and declined copyright protection. The tweet in question was not eligible for copyright protection as a ‘literary work’ and therefore the printing of the tweet on a postcard for commercial reasons was no illicit infringement. The tweet, according to the court, was lacking the necessary level of creativity as it only contained everyday language. The tweet (just like most tweets) was only of the length of an advertisement text. The level of creativity must, however, then be above average. Short texts barely ever reach the sufficient level of creativity and originality.

In conclusion, a heightened originality standard applies to short texts, such as tweets. Now that Twitter has raised its character limit end of 2017 from 140 to 280 characters, it might become easier for tweets to be protected by copyright.