The success of Instagram

Instagram is a social network based on the sharing of pictures. Released in 2010, Instagram consists in posting photographs from one’s phone through an application. This application functions almost entirely on a mobile platform and links to social medias (Facebook, Twitter, and Tumblr), facilitating the sharing of images on other platforms.

Social networks, like Instagram, lead to the fact that in our digital era, “people can tell stories through their photos. Not only is Instagram being used by the average person but it has become an avenue for professional photographers to share their work and allows celebrities to connect with their fans”

[1]. Further, “camera phones have made it infinitely easier to photo-document one’s life. Applications, like Instagram, allow individuals to not only document their lives for themselves, but also to share their experiences with the world. Whether it is a night out with one’s friends or a trip around the world, the experience is shared with all”[2]. However, Instagram is the perfect example illustrating copyright concerns in the present society.


The Instagram controversy

At first glance, it could be questioned whether copyright subsists in posting photographs from one’s phone through an application. However, as stated above, it is clear from the incorporation of the Berne Convention, that copyright automatically extends to such a work. Since the publication of a work on the Internet cannot be confused with the submission of the work in the public domain, publication of photographs into a smartphone application should be considered equally.

Nevertheless, the big problem with social networks and application is that, without regard to copyright protection, when publishing images to an application, the user is only as protected as the terms of service permit.

In 2012, Instagram hogged the international spotlight because of the modification of the terms of service as below:

To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take in compensation with paid or sponsored content or promotions, without any compensation to you.

The decision to change the terms of service provoked intense negative reactions, ranging from ordinary people to celebrities in the four corners of the world. Competitors, such as Yahoo, which is the owner of Flickr, tried to take profit of the Instagram controversy by stating, “We feel very strongly that sharing online shouldn’t mean giving up rights to your photos”. Because the creators of Instagram feared to see a tragic decline of subscribers, they decided to take a step back and restore the original terms of service.


The intervention of the Government

Despite the restoring of the original terms, and the victory of copyright owners, users’ rights in their photographs published through Instagram are still questionable. Most countries take the protection of creative works very seriously, as shown by existing copyright protection. However such protection is unintentionally relinquished by most users when clicking to agree to terms of service. It is commonly known that people who sign standard form contracts rarely read them, despite the traditional legal doctrine imposing a ‘duty to read’. In fact, it is no secret that users click to agree to terms of service by placing their trust and goodwill into the service provider.

Considering that copyright protection applies to an individual as long as he does not relinquish his right, and given that users relinquish their rights on the Internet without even knowing it, the situation appears problematic.

It is therefore suggested that Government should intervene “to ensure that the unconscionability in such contracts does not abolish users’ rights in their property”[3]. This could be done via copyright reform or public notice requirements on how terms of service may be altered.

[1] Smith K.M., 2013. Copyright in the Mobile Media Era. Pitt. J. Tech. L. & Pol’y 13, p. 3

[2] Smith K.M., 2013. Copyright in the Mobile Media Era. Pitt. J. Tech. L. & Pol’y 13, p. 6

[3] Smith K.M., 2013. Copyright in the Mobile Media Era. Pitt. J. Tech. L. & Pol’y 13, p. 14