The question above is posed by many who share pictures, news on their webpage or blog. The usual response is ‘if they are already made public why shouldn’t they be used freely?’. We almost automatically agree to Instagram’s terms and conditions however, there is a lesser known part of the agreement regarding the publication and sharing of Instagram posts. We have examined this topic with dr. David Beraczkai, a copyright and web law associate at Sár and Partners Attorneys at Law.
Most pictures and videos on Instagram are considered as artistic works by law, therefore they enjoy copyright protection. By posting pictures or videos people give a license to Instagram Inc. that allows them to rightfully display their posted artistic works.
The terms and conditions specifically state in what ways the posted works can be used which is ensured by the automatic licenses given by users: “(the Instagram user) provides Instagram with a license free of charge, valid worldwide and one that is not exclusive”. This essentially means that the user still holds all copyrights in connection with its posts because the licence is not “exclusive” to Instagram. However, Instagram may authorize further use of your posts, typically when engaging hosting services or cooperating with other tech companies.
David Beraczkai drew our attention to the fact that by agreeing to the terms and conditions users do not consent to other users sharing or using their materials such as their videos and pictures. In accordance with the conditions, such pictures can only be used by the user, Instagram and any third party possessing a valid sublicense. Thus, other Instagram users may not use others’ posts since they are not holding a sublicense by Instagram. This prohibition is further stressed in the terms and conditions: “The user cannot share, transmit, broadcast, sell, license or use any Instagram content”
Therefore, if one does not hold a permission from the right holder (typically the user) to use their video or picture that person may find him or herself in danger in terms of legal consequences, so we should always stay away from such use of different materials on our blogs, in our articles or just simply by sharing them. According to Instagram’s policy the safest way to legally share a post is to include the Instagram web link to it. All this means is that through this process, Instagram can legally share the content with a third party based on its license policy.
“However, in the European Union if someone shares an Instagram post with a link not provided by Instagram, that person is committing infringement, this includes if someone downloads, saves, stores, duplicates and/or uploads them using a different program. The right holders can effectively take action against these infringers as their rights are protected by legislation and the terms and conditions of Instagram as well.” – said the expert.
The European Court of Justice established the new public theory in its Svensson judgment issued on 13th of February 2014, pursuant to which if someone sidesteps the rules and shares Instagram materials with not Instagram approved links that person is exposing them to a new public that the right holder did not intend or consent to. This behavior raises serious legal concerns and may be regarded as illegal. The new public created by sidestepping the rules with different platforms that require their users to sign up and also self made platforms may be regarded as new pubic according to the Court’s ruling above. The given Instagram user did not consent to its pictures and videos to be made public on another forum/platform thus; its intent was also against the new public that was able to view the materials. The unlawfulness in this case may be proven relatively easily as the user agreed to Instagram’s terms and conditions.
In conclusion, to avoid any unwanted legal consequences it is advisable to consult with a legal expert beforehand.