Can GIFs infringe copyright? In Europe the answer is potentially 'yes'

Facebook GIF button

Thanks to Katfriend and scholar Martin Husovec (Tilburg University) this Kat has become aware that, after Facebook, also Twitter is on the move to introduce a dedicated GIF button (although for the moment it is only testing it on its mobile version).

As most IPKat readers will know, a GIF [which stands for graphic interchange format and - importantly - must be pronounced with the same soft 'g' of 'gelato'] is "something between an emoticon and a video clip" and "looks like a short, slightly grainy video file that plays over and over again".

Usually GIFs reproduce (very) short extracts of films or other likely-to-be-copyright-protected material, more-often-than-not for non-commercial purposes [if you wish to create your own GIFs, learn how here].

This Kat is not aware of any specific decision on the copyright status of GIFs, although determining whether a GIF is something that has the potential to infringe third-party rights may become particularly relevant. This is so on consideration: (1) of their increasing availability, now also by means of dedicated buttons; and (2) that there are entire news portals that provide daily good journalism also by using GIFs as a visual aid.

In the recent past the NFL has submitted takedown requests to Twitter over allegedly-infringing GIFs, although some commentators have concluded that - even if likely to fall within the scope of copyright protection - under US law GIF-providers would be likely shielded from liability for copyright infringement thanks to the 'fair use' doctrine.

But would the same be true in Europe?

GIFs prima facie infringing?

Among other things, Article 2 of the InfoSoc Directive mandates upon EU Member States "to provide for the exclusive right of authors to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part" of their works.

The notion of 'reproduction in part' was interpreted by the Court of Justice of the European Union (CJEU) in its landmark decision in Infopaq.

In that case the CJEU held that there is 'reproduction in part' any time extracts that "contain an element of the work which, as such, expresses the author’s own intellectual creation" [para 48].

Although the Court conceded that reproduction of individual words would not fall within the scope of Article 2, it is apparent - also in light of subsequent case law - that reproduction of anything above a de minimis threshold would be likely regarded as reproduction in part.

In relation to GIFs, it is arguable that they contain protectable elements of a work or, to borrow from the language of trade mark law, elements of a work that are used because of their very distinctive and recognisable nature.

The real point would then be to determine whether any defences could be available to GIF-providers.

GIFs as quotations?

Any defences?

There is probably no need to recall that, unlike US law, under EU law there is a closed list of exceptions and limitations in Article 5 of the InfoSoc Directive that EU Member States are free (with the sole exclusion of the exemption for temporary copies in Article 5(1)) to implement into their own legal systems. 

If we take the (general) case of a GIF that reproduces part of a protected work without modifications (so that there would be no issues of whether the GIF at stake could be regarded, for instance, as a parody), it would appear that in general this is unlikely to treated as criticism or review of a work or its underlying ideas, or news reporting [a while ago this Kat discussed this very possibility in relation to vines of Premier League goals]. 

As such, the applicable defence might be potentially the one for quotation within Article 5(3)(d) of the InfoSoc Directive. This exception allows Member States to permit "quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose."

Besides the fact that this exception is optional for Member States to implement, the problem is that different Member States that have introduced it into their own laws have done so in different terms.

Quotation: yes, but where?

Introduced in 2014, section 30(1ZA) of the Copyright, Designs and Patents Act 1988 provides that:

"Copyright in a work is not infringed by the use of a quotation from the work (whether for criticism or review or otherwise) provided that— 
(a) the work has been made available to the public, 
(b) the use of the quotation is fair dealing with the work, 
(c) the extent of the quotation is no more than is required by the specific purpose for which it is used, and 
(d) the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise)."

This exception has not yet been applied by a UK court, so its scope is uncertain for the time being. However, in this Kat's opinion a GIF would likely satisfy all the conditions indicated by this provision, including fair dealing. The main problem could be however with acknowledgment, although a GIF could possibly be excused from failing to providing it.

Whether a GIF could be however regarded as a quotation might be more problematic in other EU Member States.

For instance in France Article L-122-5(3)(a) of the Code de la propriété intellectuelle states that quotations are allowed insofar as (1) they clearly indicate the name of the author and the source; and (2) are justified for by the critical, polemic, educational, scientific or information of the work in which they are incorporated.

Both conditions may be difficult to meet for GIFs, particularly the latter. This is because GIFs are self-standing quotations, not attached to any other work.

Finally, if we take the case of this Kat's native land, Italy, Article 70(1-bis) of the Legge sul Diritto d'Autore allows online free publication of low resolution or degraded images and musical works, for educational or scientific uses and only where such use is for non-commercial reasons.

As far as this provision is concerned, the main problem for GIFs would be to determine whether they can be regarded as educational or scientific uses of protected works.

In conclusion

The creation and provision of GIFs under the laws of EU Member States does not appear necessarily a safe enterprise from a copyright standpoint, especially if one considers jurisdictions like France or Italy.

This means that both direct creation and making available of GIFs (as it appears to be the case, for instance, of Buzzfeed) and the hosting of GIFs (eg on Facebook and Twitter through their GIF buttons) have the potential to generate some copyright headaches, at least in some European countries, for GIF-creators and internet service providers alike.

But what do readers think?

[Originally published on The IPKat on 4 February 2016]