Infringing for the Gram: Copyright Infringement in the Era of TikTok, Instagram Story and Facebook Live

"It all started when my mom met my dad and they fell in love and they had me. Hi, I'm Ryan and my life is kinda crazy."
 
If you have spent any time on social media in the past two months and have a member of Gen Z within your close proximity (or you yourself are a Gen Zer), chances are you have heard this line. The “My Mom Met My Dad” meme, which first originated on TikTok, has become immensely popular with compilation videos being widely shared on other social media platforms like Instagram and Facebook.
 
While user-generated content has always been the bedrock of social media since its inception, the advent of new methods of content creation and sharing in recent years poses a new set of quandaries on whether such acts amount to copyright infringement. From the reposting of someone else’s Instagram Story to livestreaming via Facebook Live, this article will examine the implications under Malaysia’s existing copyright laws.
 
TIKTOK, IN THE DOCK
 
For those unfamiliar, TikTok is a mobile app for creating and sharing short-form video content. On the surface, TikTok looks no different from any other social media app of its ilk (your Vines, Instagrams, Snapchats and what have you). However, TikTok’s popularity has soared exponentially in the last couple of years, largely attributable to how versatile and user-friendly it is.
 
Most crucially, since merging with karaoke app musical.ly, TikTok offers an enormous library of sounds from which users can easily select to score their videos – from clips of the latest pop hit to dialogue from TV shows to audio from other TikTok videos. It is no surprise then that the top trending TikToks are often those of people lip-syncing and dancing to trending pop songs.
 
What may come as a surprise to users, however, is that several of their TikTok videos might potentially infringe the copyright of those songs used.
 
Unlike other platforms where users upload songs already contained in their devices to edit into their video, TikTok itself provides music from its library for users to download and use. One would think any video created using the music on TikTok must be authorised because surely TikTok would have secured some licensing arrangement with the relevant rightsholders, right? Well, it seems one would be wrong.
 
In April 2020, it was widely reported that the National Music Publishers Association (“NMPA”), a US-based body representing thousands of music publishing companies threatened to sue TikTok for copyright infringement. According to the reports, Universal Music, a member of NMPA, was in licence negotiations with TikTok but failed to reach an agreement. This means that songs in Universal Music’s repertoire that have been used in TikTok videos were used without any licence in place. Thus, Universal Music is seeking payment for retrospective royalties.
 
Unless a deal is reached with Universal Music, TikTok users may see their videos of them karaoke-ing to hits by Elton John, Lady Gaga, Billie Eillish or other Universal Music artists being taken down for violating copyright in the same.
 
IS IT TOO LATE, GIRL, TO INSTA STORY?
 
In August 2016, Instagram, the photo and video sharing app owned by Facebook, introduced a new tool to its belt: Stories. Instagram Story (colloquially, “IG Story” or “Insta Story”) borrows the iconic feature from its competitor, Snapchat, by allowing users to post 15-second videos which can be viewed for 24 hours only.
 
In a bid to rival the increased competition from TikTok, Instagram recently released Reels, a new function which, much like TikTok, allows users to set their Instagram Stories to music from its music catalogue. Instagram has been slowly rolling out Reels for Stories in different regions. At the time of writing, this feature is still not available in Malaysia. Thus, for now, Malaysian Instagram users do not face the same risk of copyright infringement described above as with TikTok.
 
Still, using Instagram Stories is not without its own risks.
 
Lions and Tigers and Fairs! Oh My!
 
Scenario A: You post a 15-second Instagram Story of you walking around a mall and some faint background music playing on the mall’s speakers can be heard.
 
This is unlikely to amount to copyright infringement. Section 13(2)(f) of the Malaysian Copyright Act 1987 provides that the incidental inclusion of a work in an artistic work, sound recording, film or broadcast is an exception to copyright infringement. So, say a copyrighted song happened to be playing while you were recording or a magazine cover can be seen briefly in the corner of your room when you pan the camera around – you would likely be entitled to rely on this defence.
 
Scenario B: You post a 15-second Instagram Story of you performing a choreographed dance routine (which you laboriously rehearsed) to an Ariana Grande song playing on your laptop in the background.
 
This scenario is less clear cut. Firstly, you would likely not be able to rely on the incidental inclusion defence as in Scenario A because your inclusion of the song in this instance would likely not be considered incidental, but deliberate instead.
 
There is another potential defence which could be applicable – the “fair dealing” defence in Section 13(2)(a) of the Copyright Act 1987.
 
But first, it is important to distinguish between the defence of “fair use” and “fair dealing”, which many use interchangeably. However, they are both very distinct concepts.
 
“Fair use” is an exception to copyright infringement under US law, which is a very general concept and can widely be applied to a myriad of uses. The question of whether fair use applies is oftentimes very fact specific. Arguably, user-generated content like that in Scenario B would be exempted from copyright infringement under the defence of “fair use” in the US.
 
“Fair dealing”, meanwhile, is an exception to copyright infringement which can be found in most common law jurisdictions such as the UK, Canada, Australia and even here in Malaysia. Unlike “fair use”, “fair dealing” in the UK-sense, is a much more restricted defence which can only be invoked if the use falls within the exhaustive list of statutory fair dealing purposes.
 
In MediaCorp News Pte Ltd & Ors v MediaBanc (Johor Bharu) Sdn Bhd & Ors [2010] 6 MLJ 657, the only reported judgment on the “fair dealing” defence in Malaysia, the High Court stated that “Unlike the situation in the United States of America, the [Malaysian Copyright Act 1987] does not allow for 'fair dealing' to be assessed by considering a broad category of circumstances and ascertaining whether those circumstances conform to a set of statutory guidelines. On the contrary, fair dealing under the Act is confined to 'fair dealing' for the prescribed purposes set out in that section and no more.” At that time, Section 13(2)(a) provided that the rights granted under copyright do not include any acts done “by way of fair dealing for the purposes of non-profit research, private study, criticism, review or the reporting of current events
 
However, since MediaCorp was decided, Section 13(2)(a) has been amended. It now reads “by way of fair dealing including for purposes of research, private study, criticism, review, and the reporting of news or current events”. Unfortunately, there has not been any subsequent caselaw to construe whether the inclusion of the word “including” means that Malaysia’s “fair dealing” defence now skews towards a more open-ended fair use defence.
 
If yes, then it is possible that Scenario B would be excluded from copyright infringement. If not, then under the restricted interpretation in MediaCorp, the fair dealing defence would likely be inapplicable for Scenario B.
 
15 Seconds to Mars
 
Having said all the above about the possible defences, there lies a much more fundamental question: Does using 15 seconds of a song or movie in your Instagram Story even amount to copyright infringement in the first place?
 
One of the key elements in the test for copyright infringement is that a substantial part of the original work must be taken. What constitutes substantial? The UK House of Lords in the seminal case of Designers Guild Ltd v Russell Williams (Textiles) Ltd [2001] 1 All ER 700 sagely stated that it is “a matter of impression, for whether the part taken is substantial must be determined by its quality rather than its quantity. It depends upon its importance to the copyright work. It does not depend upon its importance to the defendants’ work” This judgment has been widely accepted in Malaysian copyright caselaw.
 
It is a common misconception that using 5 or 10 seconds of copyrighted music is permissible. The truth is that there is no magic number for evading copyright infringement. Being a question of quality over quantity, using only 15 seconds of a 2-hour movie in your TikTok video or Instagram Story does not instantly absolve one from copyright infringement. If a 15-second video contains an instantly recognisable quote from an iconic film (e.g. “Here’s looking at you, kid – Casablanca), it may very well amount to substantial taking and infringement. However, if the 15 seconds contain a random snippet of throwaway dialogue (e.g. “Well you’re going home. You’ve had a little too much to drink” – yes, this exact line is also from Casablanca), the answer becomes less clear.
 
What further complicates matters is the fact that Instagram allows users to post a maximum of 100 Instagram Stories in a row. This means, theoretically, a user could upload an entire song by stringing together multiple 15-second splices played back-to-back. The question is, should one treat the entire series of Instagram Stories as a whole infringing work? Or is each Instagram Story treated as a separate work, in which case some Stories might infringe if they contain a qualitatively substantial reproduction of the original work, but others might not?
 
Another facet of Instagram Stories is that they are very transient. Each Instagram Story is only available to be viewed for 24 hours, unless it has been added as a “Highlight”. This means that the majority of instances of copyright infringement will likely go undetected and it is only against high-profile and viral posts that action will be enforced. Case in point, supermodel Gigi Hadid was sued for copyright infringement when she posted a photo of her ex-boyfriend, Zayn Malik, taken by a photographer as an Instagram Story without the photographer’s permission.
 
Repost Malone
 
As mentioned earlier, sharing other users’ posts is a fundamental aspect of social media, no less so when it comes to Instagram Stories. One feature of Instagram Stories is that it allows users to “mention” other Instagram accounts, i.e. you can tag other users whose username will be visible in your story. If you are mentioned in someone else’s Instagram Story, you will receive a notification with the option to click “Add This to Your Story” allowing you to instantly repost the photo or video to your own Story.
 
While such conduct appears innocent enough, even this method of reposting begets the question of whether it amounts to copyright infringement.
 
Before delving into reposting someone else’s Insta Story, let’s take a look at the general practice of reposting a regular photo or video uploaded on Instagram. Putting aside the practice of sharing viral memes (which is a whole separate can of worms), there is a plethora of Instagram profiles which compile and repost other users’ content and do not upload any original content at all. Oftentimes, the original uploader is happy with this as long as proper attribution is giving. Compilation accounts have a wide audience, so most users are happy to be featured in a repost and are grateful for the increased exposure from being tagged in the repost. While this may be a commonly accepted practice, that does not make it legally correct.
 
Instagram’s Community Guidelines expressly state: “Share only photos and videos that you’ve taken or have the right to share. As always, you own the content you post on Instagram. Remember to post authentic content, and don’t post anything you’ve copied or collected from the Internet that you don’t have the right to post.” In fact, Instagram has an entire FAQ page dedicated to copyright issues.
 
Accordingly, unless these compilation accounts expressly reach out to seek your permission before reposting your content, they do not have the right to do so. You are thus entitled to report the infringement to Instagram and have the post taken down, or go even further and file a suit for copyright infringement. Then again, if the repost is not being used for any commercial gain (e.g. a fan account dedicated to reposting photos of a celebrity), the fair use/fair dealing defence may kick in.
 
When you repost an Instagram Story in which you are tagged, however, that makes things a little murkier. Most of the time, this would not be too big a deal given that users usually only mention their close friends and family in their Instagram Stories. However, envision a situation where you post an Instagram Story of you rocking your freshest adidas threads and you tag the official adidas account in your post. Impressed with your post, adidas reposts your Instagram Story.
 
On the one hand, strictly speaking, adidas is reproducing your copyrighted work and should be obligated to obtain your express consent before doing so. On the other hand, given that adding someone else’s Instagram Story to your own Story is a built-in functionality provided on Instagram’s platform, an argument could be made that, when you tagged adidas in your Instagram Story, you have impliedly consented to adidas adding it to their own Story.
 
Either way, to err on the side of caution, it would be best for all users to ask for permission before reposting an Instagram Story that they have been mentioned in.
 
YOU MAKE ME FEEL LIKE I’M LIVING A TEENAGE LIVESTREAM
 
In April 2016, Facebook introduced Facebook Live, which allows users to broadcast live video recordings, effectively granting the everyman a TV camera in their PCs and phones. Many other platforms, from YouTube to Instagram, have picked up this functionality as well.
 
With the increased ease of livestreaming, businesses now have a new way of marketing which allows direct engagement with their audience. Many business owners can livestream promotional activities or events from their premises. For example, a gym coach may hold live fitness classes in their gym via Facebook Live, while participants join in from the comfort of their own homes. But what if there is music playing in the background while the livestream takes place? Does the risk of copyright infringement arise?
 
What many people do not realise is that “copyright” is actually a bundle of different exclusive rights, including the right to reproduce a work, to perform a work and, crucially in this case, to communicate a work to the public. The right of communication to the public is defined in the Copyright Act 1987 as “the transmission of a work or performance through wire or wireless means to the public, including the making available of a work or performance to the public in such a way that members of the public may access the work or performance from a place and at a time individually chosen by them”. Though there is no Malaysian authority on this yet, livestreaming would likely fall within the act of “communication to the public”.
 
Most businesses in Malaysia are aware that, in order to play background music in their premises (be it a café, gym or retail store), they are required to obtain an annual music licence. With the recent dissolution of the previous sole licensing body designated to carry out collective music licensing activities in Malaysia, Music Rights Malaysia Berhad (“MRM”), the three main music licensing bodies in Malaysia, i.e. Music Authors’ Copyright Protection (MACP) Berhad (“MACP”), Public Performance Malaysia Sdn. Bhd. (“PPM”) and Recording Performers Malaysia Berhad (“RPM”) have independently resumed the issuance of music licences and fee collection for the copyright owners they respectively represent.
 
However, what most businesses are likely to be unaware of is that the annual business premise music licences granted by these licensing bodies do not include the right to livestream music being played in their business premises. Take MACP’s annual Music Copyright Licence for example. Under MACP’s terms and conditions, a licensee is only granted the right to perform publicly or authorise the public performance of musical works at the licensed business premise. This does not include the right to communicate to the public. In fact, Clause 1.3(f) expressly excludes the right to broadcast or transmit the musical works digitally or electronically.
 
This means that, strictly speaking, the hypothetical gym coach above has likely gone beyond the rights granted under the gym’s music licence from MACP and breached the copyright of the music played during the Facebook Live stream. He/she may be required to apply for a separate licence from MACP, RPM and/or PPM in order to record and stream live videos with music playing, despite already having an annual music licence for the business premise.
 
It is difficult to say whether the previously discussed defences of incidental inclusion and fair use/fair dealing could apply in this situation. For one, it questionable whether the inclusion of the music playing in the background in such a situation would be considered incidental since the music is being played deliberately in the background for ambience. The music is also likely to be considered as being used for a commercial purpose for financial gain, in which case the fair use/fair dealing defence would likely be inapplicable.
 
HEY YO!  LAST THOUGHTS CHECK
 
For businesses and individuals alike, using social media can be akin to traversing a minefield of potential copyright infringing activities. The beauty of social media’s role in pop culture is that social media users have constantly found inventive ways to sample, remix and transform existing content into new forms of creative entertainment. This sort of inventive use should be cherished and encouraged. That said, users should always have a healthy dose of caution whenever making use of others’ content, even if it is an innocuous act like reposting that viral meme of  “Xue Hua Piao Piao” which you like so much.
 
Article by Gooi Yang Shuh, Associate, in the Intellectual Property Practice Group of Skrine.