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intellectual property (IP) | 01 Sep 2020
BY Ilse du Plessis
ENSight

intellectual property (IP)


TikTok: now to the copyright and political issues

We first wrote about a while back. For the benefit of any adults reading this article, TikTok is a social network for amateur music videos, a global phenomenon that started in China as recently as 2016. What happens is that youngsters use 13-second music clips that they can upload to TikTok and add their own little twists, which may take the form of a funky dance or lip-synch. Lots of other youngsters then watch these videos. It’s still too early to tell whether anyone involved in this process goes on to get a life!

Some TikTok videos become massive and there are a number of performers who have become global stars with huge followings and even brand endorsements. In our previous article, we focused on the issue of whether the creators of these videos were doing enough to protect their trade mark rights.

The focus now seems to be shifting to copyright issues, as it should. An article that appeared in the IPKat blog entitled “TikTok signs copyright licensing agreements with music publishers” addresses some of these issues. The author, Hayley Bosher, makes some interesting points:

  • Bosher suggests that TikTok can actually have a positive impact on some musicians, in the sense that the TikTok videos have the effect of pushing the original recordings up the charts. She lists as an example as Lil Nas X’s (yes really, that’s the artist’s name) song Old Town Road which, after going viral on TikTok, holds the record for the longest-reigning Billboard Hot 100 No. 1.
  • The music industry and the collecting societies have been trying to negotiate agreements with TikTok for some time, and legal proceedings have been threatened.
  • In July 2020, TikTok signed licensing agreements with certain independent distributors. This was followed up with news that TikTok had signed a copyright licensing agreement with the UK National Music Publishers’ Association (NMPA).
  • Earlier attempts aimed at reaching a copyright agreement ended up with a matter being referred to the UK Copyright Tribunal – the matter was subsequently withdrawn when the parties announced that they would try arbitration.
  • As for TikTok users, the terms and conditions that they agree to when they upload content state that they remain owners of the copyright. But the rights that they purport to grant are so broad and far-reaching – there’s talk of unconditional, irrevocable, non-exclusive, royalty-free licences permitting use, reproduction, modification and adaptation of material – that Bosher feels they have the effect of “completely undermining the entire music copyright system.”
  • Bosher finally considers whether a 13-second video might be regarded as parody, which is significant because parody is sometimes regarded as an exception to copyright infringement. Bosher suggests that a mere dance routine would probably not amount to a parody, although an elaborate and funny lip-synch routine might.

It seems clear that the IP (and particularly copyright) issues surrounding TikTok are complex and that there may still be some way to go. But the fact that they are being addressed should probably be regarded as a positive thing.

Meanwhile, Donald Trump has made sure that there are other, non-IP issues to consider too. As many readers will know, Mr Trump has been fixating on TikTok for a while. Whether this is because TikTok is Chinese-owned or because it is known to have hosted content that mocks Mr Trump isn’t clear. But the president does seem convinced that TikTok poses a security threat to the USA, in the sense that it allows the Chinese state to access or harvest information about people in the USA through their mobile phones. The president has made big demands: find a buyer of TikTok’s US business or face a ban. Perhaps he sees TikTok as an election winner?

The chances are we will be talking about TikTok for some time to come. Even those of us who aren’t singing or dancing along to it!

 

Ilse du Plessis

Executive | IP

iduplessis@ENSafrica.com

+27 82 411 7547