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7.3 Why does social media raise copyright issues?
Numerous factors specific to social media affect, and might complicate the enforcement of copyright law.
The blurry boundaries between the author, distributor and user
The way social media works is fundamentally different to how traditional media types work. In fact, there is a clear distinction between those who provide the performance or work, such as directors and editors, and those who benefit from the work, for example the audience it is aimed at. This strict division of roles does not apply to social media, where anyone engaging with the media is at once author, producer and consumer. Everyone is able to create their own content, edit others’ content and decide to broadcast it (Federal Council, Cadre juridique pour les médias sociaux [Legal Basis for Social Media], Report of the Federal Council in Fulfilment of the Amherd Postulate 11.3912 of 29 September 2011, p. 7).
A difficult distinction between private and public communication
Traditionally, there is a relatively strict distinction made between private and public communication in terms of the group of recipients. A private communication is distributed to a restricted number of recipients whom the sender knows, whereas in a public communication, the sender has no control over the group of recipients, so he or she does not know who will receive the message. The different methods of communication used to be relatively distinct (a private communication by exchanging letters was totally different to a public announcement in a newspaper) (Federal Council, Cadre juridique pour les médias sociaux [Legal Basis for Social Media], Report of the Federal Council in Fulfilment of the Amherd Postulate 11.3912 of 29 September 2011, p. 7).
The situation is changing with the arrival of social media. In actual fact, some forms of social media make it very easy for users to switch between private and public communication on the same platform. Facebook, for example, allows information to be published for a more or less restricted audience and also provides a private messaging function where users can control who receives messages.
The problem of data control
Data and content provided by social media users are not stored at a specific physical location any more, but are kept on third-party servers that offer greater flexibility and therefore support more intensive use. This transfer often involves users losing control of their content, in particular their personal data (Federal Council, Cadre juridique pour les médias sociaux [Legal Basis for Social Media], Report of the Federal Council in Fulfilment of the Amherd Postulate 11.3912 of 29 September 2011, p. 8). This data is often stored in other countries by hosts who are often based in the U.S. Given this and the rules governing general conditions of use, there can be uncertainty as to which laws apply (Rebetez M., Internet, les réseaux sociaux et le droit d’auteur [Internet, Social Networks and Copyright] p. 22).