Twitter retweet function causes moral rights infringement

On 25 April 2018 the Japanese IP High Court released a decision which has made Twitter users feel uneasy.

A photographer who owned the copyright in a photo demanded that Twitter, Inc and Twitter Japan disclose the information of the user who had posted it on Twitter without the photographer's permission, as well as the information of those who had retweeted it.

The court ruled that the tweet constituted copyright infringement and ordered Twitter, Inc to disclose to the photographer the user information (ie, email address) of the user who originally tweeted the image. However, the court denied copyright infringement on the part of the users who retweeted the infringing tweet. This decision was in accordance with the lower-court ruling, but the IP High Court judges disagreed, finding that a retweet represents moral rights infringement and ordered the disclosure of user information.

The photo showed a sign stating “reproduction prohibited” in the top half of the image and the copyright mark followed by the name of the photographer and his autograph in the bottom half. However, the photo reproduced by the retweet function was trimmed and resized; as a result, the sign, the copyright mark and the name and autograph of the photographer were cut off. Therefore, the process of the Twitter retweet function caused moral rights infringement. 

The court rejected the photographer’s claim against Twitter Japan, considering the lack of authority to disclose such user information.

It is worth noting that, while in this case the tweet infringed copyright, normally a person who posts contents on Twitter permits Twitter, Inc to process, adapt and modify the contents in accordance with Twitter’s terms of service: 

By submitting, posting or displaying content on or through the services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such sontent in any and all media or distribution methods (now known or later developed).

The user who tweeted the photo in this case also violated the terms of service, which require users to have obtained the permissions necessary to tweet contents:

You represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for any content that you submit, post or display on or through the Services. You agree that such content will not contain material subject to copyright or other proprietary rights, unless you have necessary permission or are otherwise legally entitled to post the material and to grant Twitter the license described above.

Even if such a problem occurs only when users retweet copyright infringing tweets, some users may hesitate to retweet others’ tweets as it is hard to judge whether a tweet infringes a copyright. However, it is not unusual for users to assume that other users have obeyed the terms and conditions.

In order to prevent innocent users from getting involved in such copyright disputes, Twitter may review the process of the retweet function.