Bussiness

Is communication on Facebook private or public? 

Introduction | Facebook private or public

Is communication on Facebook private or public? 

This is an interesting question to me, not least because. As you may know, many copyright provisions are inspired by the distinction between what is “private” and what is “public”. 

So, for example: 

  • Article XI.165, para. 4, of the Code of Economic Law (“CDE”): “The author of a literary or artistic work alone has the right to communicate it to the public (…)”; 
  • Article XI. 165, al. 5, CDE: “The author of a literary or artistic work alone has the right to authorize the distribution to the public , by sale or otherwise, of the original of his work or of copies thereof”; 
  • Article XI.190, para. 1, 3 °, CDE: “When the work has been lawfully published, the author cannot prohibit the free and private performance carried out in the family circle .”; 
  • Article XI.190, para. 1, 5 °, CDE: “When the work has been lawfully published, the author may not prohibit the partial or complete reproduction of articles, plastic or graphic works of art or that of short fragments of other works. , with the exception of scores, when this reproduction is made on paper or on a similar medium, by means of any photographic technique or any other method producing a similar result, for a strictly private purpose and does not prejudice the normal exploitation of the work ”; 
  • Article XI.190, para. 1, 9 °, CDE: “When the work has been lawfully published, the author may not prohibit the reproduction on any medium other than on paper or similar medium, of works, carried out in the family circle and reserved for that -this”. 

It follows from this list that the author has the right of communication “to the public” on his work (this is an exclusive right which gives him the possibility of authorizing or prohibiting the communications of his work to the public. ). Conversely , if the communication of his work is not made to a public (and is therefore private), the author has nothing to say about it and cannot prohibit it. This is specified, as far as necessary, article XI.190, al. 1, 3 °, which also refers to the “family circle” (which is, by definition, not public). 

Besides the right of communication to the public. The author also has the right of reproduction on his work. (which is also exclusive and which therefore allows him to authorize or prohibit the reproduction of his work). This reproduction right applies in principle regardless of the private or public use which will then be made of the reproduction.  Without the authorization of the author. It is purely and simply forbidden to reproduce his work (copy, photocopy, scan, record on a digital medium,…; but also translate, because the translation is an “intellectual” reproduction). The legislator has however introduced some exceptions to the reproduction right. For example by authorizing the copy referred to in article XI.190, para. 1, 5 ° “for strictly private purposes” and the copy referred to in article XI.190, para. 1, 

It is therefore always important, when dealing with a work and copyright, to know whether: 

  • such or such communication of the work is public or private; 
  • such reproduction or such reproduction of the work has a strictly private purpose or is carried out within the family circle. 

Application of these principles to Facebook private or public
 

Facebook is no exception to the rule! 

Let’s take a relatively simple example: if I take a scan of a copyrighted photo at home, and then post it on Facebook, can I validly argue, under these circumstances, that the reproduction ( ie scanning) and communication (ie uploading to Facebook) of this copyrighted photo is private and intended for the family circle? 

The answer seems to me to be negative: 

  • First, because as I wrote here already , “it is doubtful that Facebook can be equated with the ‘ family circle’”; indeed, if you have even 50 “friends” on Facebook, it will be difficult to establish that these 50 “friends” all have with you “a character of close intimacy” which characterizes the very notion of a circle. of family; 
  • However, in the absence of such an intimate link with your Facebook “friends”, it is indisputable that the uploading of the photo on Facebook is of a public nature and is not carried out in the family circle, which immediately disqualifies the exceptions to the right of communication to the public and to the right of reproduction mentioned above. 

Therefore, when. Without the author’s permission, I scan a copyrighted photo at home and then upload it to Facebook private or public. I am violating both its reproduction right and its right of communication to the public. 

The judgment of the Court of Cassation of June 24, 2015, P.15.0194.F (LP against Bord de l’Eau and WB) | Facebook private or public
 

This is exactly the conclusion reached by the Cour de cassation in its judgment of 24 June 2015, P.15.0194.F: 

“Seized of proceedings for infringement based on articles 80 and 81 of the law of June 30, 1994 relating to copyright registration details and neighboring rights, the trial judge in fact assesses whether the distribution of the protected work takes the character of publicity required by article 1 of the law. 

To the conclusions maintaining that. Distributed on Facebook for exclusively personal purposes. The literary work was accessible only to a closed circle of persons determined and accepted as friends. The judgment answers that the applicant reproduced it by putting some the text online. By means of a message on its “wall” but which included a link allowing access to the entire text. It adds. On the one hand. That in this way the book could potentially be distributed to a multiple number of Internet users and. On the other hand. That there was direct access to the website of the applicant’s publishing house.  He deduced that the latter must have known that his computer message would reach. A larger community of Internet users than his few friends. 

By these findings, the appellate judges were legally able to consider that the communication of the work was not limited to a restricted circle of intimates ”. 

According to the Court of Cassation therefore. When a work is made available on a person’s Facebook “wall” (whether directly or via a link). The communication of the work is not limited. To the circle of family and falls under the author’s right of communication to the public.

The reference to the Facebook “wall”, however, suggests that it could be different if the work were put online and made available in a private group, limited to a few people. In this case. The exceptions inspired by the private character of the reproduction. Or the communication and by the family circle could possibly be applied. 

*** 

In short, when you upload a work protected by copyright on Facebook private or public, without having obtained the authorization of the author of this work, you are guilty of counterfeiting when a communication on your “wall ”Facebook is indeed a communication to the public and that your Facebook“ friends ”cannot be assimilated to the family circle. 

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