What is the position of the law with regard to social media content? For instance, can you re-post another person’s Insta-story on Facebook? Or can you use another person’s picture in your own social media post? 

Scope of copyright law
Copyright is concerned with the expression of an idea, and not the idea itself. Under the Malaysian Copyright Act 1987, copyright vests automatically upon the creation of a work without the need for any registration provided the relevant prerequisites are met.  

To qualify for copyright, a work must satisfy the following conditions: 

  1. It must be original (s 7(3)(a));
  2. It must be reduced into material form (s 7(3)(b));
  3. It must qualify for protection under s 10; and
  4. It must be one of the categories of work entitled to copyright.

What happens to copyright of works posted on social media?
When content is posted on social media, the terms and conditions of the various social media services would apply. The most common ones are featured below: 

Platform  Terms of service 
Facebook  You retain copyright to your content but grant Facebook a licence to use and display that content. The scope of the licence depends on your privacy setting. The licence ends when you delete your content from Facebook.  
Instagram  You retain ownership of your content but grant Instagram a licence to use it. This licence is non-exclusive, royalty-free, transferable, sub-licensable and applicable worldwide. Instagram may host, use, distribute, modify, run, copy, publicly perform or display, translate and create derivative works from your content, subject to your privacy and application settings. 
Pinterest  You retain all rights (and responsibility) for your content. You grant Pinterest and other Pinterest users a non-exclusive, royalty-free, transferable, sublicensable, worldwide licence to use, store, display, reproduce, save, modify, create derivative works, perform and distribute your content on Pinterest but only for purposes of use on Pinterest. 
Twitter  You retain ownership of your content but grant Twitter a wordlwide, non-exclusive, royalty-free licence with the right to sublicence, to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribnute in any and all media or distribution methods. 
Linkedin  You own your content but grant LinkedIn and LinkedIn affiliates a worldwide, transferable and sublicensable right to use, copy, modify, distribute, publish and process any information or content you provide without any further consent, notice or compensation to you or others. 

 It must be noted that since you retain ownership of copyright to your materials posted on the social media platforms, you also retain the responsibility for any infringement of copyright accordingly. 

Recommended precautions
The following are some recommended precautions for you to take before posting on social media: 

  1. If the content does not belong to you, obtain written permission from the content owner;
  2. If you are dealing with another person’s content, make sure you fall under the boundaries of “fair dealing”. “Fair dealing” is recognised under s13(2A) of the Act and a Court would consider the purpose of your use of the material, the nature of the work, the amount of the work that you use, and the effect of your dealing on the potential market for or value of the copyright work in ascertaining whether you are within the bounds of “fair dealing” or otherwise;
  3. If you are using contents from a website, including stock images, make sure you review their terms and conditions for use. The copyright owner may have included restrictions as to the extent of use allowed, and your breach of these terms may lead to an infringement action against you. 

What to do in case of infringement
If your material has been infringed, you can always lodge a report with the social media platform insisting for it to be taken down. If however you have infringed another person’s copyright, it would be best to immediately remove the offending material accordingly. 

If you have any queries or questions, you may address them to:
Wong Sheng Wei ([email protected])

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