As social media continues to take the world by storm, TikTok has emerged as a powerhouse, engrossing users with its creative short-form videos and becoming a popular platform for viral content creation. Part of what captivates users and makes the videos interesting, is the music or sounds paired with the videos.1 For this reason, it is not uncommon for videos to be copied and posted by other users, when a particular style of video becomes popular.
The success of a TikTok video is dependent on the content and song choices that the user makes.1 The belief is that if a certain sound or content type has seen success or “trended” on the platform, a replication or duplication of the post should similarly see the same results.
This belief has proven correct, in that sounds and content that have been replicated, in different videos posted by different users, have gained thousands of likes and shares on the platform. As the app continues to gain traction, it has sparked conversations about copyright, copyright infringements, and the use of copyrighted content.
Copyright infringement on TikTok (and other interconnected platforms such as Instagram) takes place when users create and share material that contains copyrighted content without the necessary authorisation or licences from the original creator. Unauthorised use of copyrighted content, such as incorporating a sound or a song as background music, or using copyrighted visuals in a video can result in infringement.
The term ”copy” is defined in the Copyright Act 98 of 1978 (hereinafter referred to as “the Copyright Act or “the Act”) as ”a reproduction in written form or in the form of a recording or a cinematograph film or in any other material form.”2 The Copyright Act also governs and provides protection to original works, including literary, artistic and musical creations.2 Almost all components that make up a short-form video on TikTok are protected by copyright.
The original creator of a work automatically holds ownership and copyright of the content material.2 In cases where a creator’s video is replicated whether through the music, dance, or text, TikTok states that it does not permit the posting, sharing, or sending of any content material that may violate another’s copyright.3 Additionally, the use of copyrighted content without authorisation or a legal reason may lead to a violation of TikTok’s policies.3
However, TikTok’s terms and conditions also state that while the user creating the content is the owner of the copyright on the content, by posting the content to TikTok, the user grants TikTok a broad licence to use the content, and to distribute and permit other users to use the content.3
Therefore, when users create posts that use the content of an original user, the original user retains the copyright in the content, but cannot institute claims against another user for using the content. This strategy enables TikTok to protect its users from direct copyright infringement claims.
On the other hand, platforms such YouTube, run preliminary checks to identify any possible copyrighted content before publishing a video, in order to mitigate potential copyright infringements.
The Copyright Act recognises the concept of fair dealing where internet users may reproduce copyrighted works for the purposes of reviewing, criticising or reporting, as long as it is done fairly and lawfully.2 Furthermore, Section 15 of the Act, states that the reproduction of artistic work will not constitute a violation of copyrights if the artistic work is in public view on a permanent basis. This means the reproduction of well-known statues, pictures and paintings permanently located in a public place (a street, square or similar public place) does not amount to copyright infringement.2 There has been no ruling from South African courts determining whether social media platforms meet the criteria of public place display according to the Act.
With the rapid developments of technology and therefore social media, it seems that South African intellectual property (IP) legislation has fallen behind. The Digital Millennium Copyright Act (DMCA) in America, was passed by Congress, to strengthen and modernise America’s existing copyright law, and address issues related to copyright and the internet.4 The purpose of the DCMA is to protect digital material that can be reproduced or manipulated easily.4 Deriving inspiration from the DMCA, South African IP legislation would do well to develop and modernise our laws to deal with issues relating to the ever-changing digital space.
The rise of TikTok has led to many interesting developments regarding copyright protection in the digital era. If you need assistance regarding your intellectual property rights, contact our legal experts at Tshaya Mashabela Attorneys.
Authors: Tumelo Mashabela | Director and Kutlwano Mokgoro | Candidate Attorney
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