Would Tencent Take the Copyright of Contents Published by Users on WeChat?

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(By You Yunting) Recently, a news report titled “My WeChat, But Not My Copyright?” (note: the article is in Chinese) has raised wide suspicion over the copyright of the messages posted on WeChat, a LBS messaging software by Tencent. The reporter checked the User Agreement of Tencent and interviewed a representative from the company. Unfortunately, ultimately the reporter was still unable to reach a conclusion  on the copyright ownership for messages posted on WeChat.

The author also examined the User Agreement of Tencent’s WeChat, and verified the dou
bt of the reporter. With regards to the copyright ownership of the content published by the user, Tencent’s User Agreement included very little information  and does not answer the question. As regulated in Article 11.1 of Tencent Service Agreement and Article 9.1 of Tencent Public Platform Service Agreement:

“All the content provided by Tencent in the service, including but not limited to webpages, words, pictures, audios, videos and tablets shall all be the intellectual property of Tencent, but excluding those content acquiring intellectual property and published by the user before using the service by the (Tencent) user.”

As explained by the representative at Tencent, the above article means:

“The article could be taken as the IP statement focusing on the content published by the user on Tencent’s platform, that the IP contents owned by the user under the law, Tencent would protect their legal rights.”

But to judge it from its literal meaning, the article may imply more than this explanation. The first half of the article says:

“All the content provided by Tencent in the service, including but not limited to webpages, words, pictures, audios, videos and tablets shall all be the intellectual property of Tencent”

For this part, it seems to be what the representative had said. However, the second half of the article is clearly aimed at the ownership  of the information published by the user on WeChat. The subtle meaning of this part of the article is that if the user obtains the intellectual property of the information posted, then it would belong to the user. If it is not the property of the user, then they shall be the property of Tencent.

According to the Implementing Rules of the Copyright Law in China, the copyright of the work begins from the day it is completed. If the user is the original creator of the work, to publish them on WeChat would not infringe on the copyright ownership. For this reason, we shall not worry about Tencent using this rule to take the IPR of the content published by the user. However, the regulation also has its defect: once the user has put information on the WeChat platform without holding any license, then the information would be included into the exception regulated by Tencent. In such a case, the user’s copyright protection would become the property of Tencent, though this is impossible as regulated by law. One’s legal copyright does not change simply due to the platform of WeChat. Therefore, to judge the issue from this aspect, although it appears to be Tencent’s advantage to regulate the exception, it actually does not make a big difference for Tencent. At least to the understanding of the author, this policy would not bring any benefits to the company.

In fact, for domestic Internet companies, Tencent’s regulation on the user content is far from outrageous. The following are two “overdo” user agreements as known to the author.

I. Paragraph 2 of Article 10 of the User Agreement of Douban, a Chinese SNS website: allows registered users to record information and create content related to film, books, music, and recent events and activities in Chinese cities:

For all the content uploaded or published on Douban, the user shall ensure himself/herself to be the copyright owner or has been licensed, and moreover such content would not infringe the interests of any other third parties; the user gives consent of sole license for its content for free, irrevocable, forever, to be licensed or transferred again to Douban, who shall thereby have the right to display, promote or to use the content in any other ways that is not prohibited by the law.

Comment: Based on the sharing feature of the Internet, granting sole license can easily lead to disputes, for once the content has been solely licensed to Douban, not only other users, but even the original publisher could no longer use it. For example, if the user would like to forward the content on his/her Douban to his/her blog, that would violate the agreement. It remains unknown to the author whether or not Douban fans have read about the article before they posted contents onto their account.

II. Paragraph 2 of Article 6 of Dianping.com, a Chinese website allowing its user to comment on the restaurant or other entertainment places they visited:

Any user accepting the Agreement means that the user has actively and solely transferred without any payment the property right of the information published at any time, in any method to the operator of Dianping.com, including (and not limited to): the right to copy, publication, leasing, exhibition, performance, showing, communication, communication by network, filming, adaption, translation or compilation, as well as any other rights. Also it shall mean that the user has licensed Dianping.com the right to file lawsuits against any infringement, and thereafter recover all the compensation. The Agreement has integrated the written agreement as regulated in Article 25 of the Copyright Law, and its effect covers all the content published on Dianping.com by the user and is protected by the Copyright Law, no matter whether the content was created before or after the conclusion of the Agreement.

Comment: for the information published on Dianping.com by the user, the  copyright of its content belongs fully to Dianping.com, and the user does not reserve any rights to it. Where does such an Agreement come from? The answer: it is the result of the hostile competitive environment of the Internet in China. Since the Internet is a newly created thing and the relevant laws and regulations are not adequate, to protect the content accumulated over the years, Dianping.com resorted to this strategy to protect itself from competitors taking advantage of its content. For the author, despite it is understandable to some extent; the articles in the Agreement were too aggressive. We suggest the company should replace this overreaching clause with other more diligent or reasonable articles.

In the following, we would introduce the reader to user agreements that appear more reasonable, and in such agreements, the copyright of the content published by the user belongs to the user, and the wording of the agreement is more refined:

I. The User Agreement of Path: Our Service allows you and other users to post, link, store, share and otherwise make available certain information, images, videos, text and/or other content (“Content”). You are responsible for the Content that you post to the Service, including its legality, reliability, and appropriateness. By posting Content to the Service, you grant us the right and license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content on and through the Service. You agree that this license includes the right for us to make your Content available to other users of the Service, who may also use your Content subject to these Terms. You retain any and all of your rights to any Content you submit, post or display on or through the Service and you are responsible for protecting those rights.

II. The User Agreement of Sina: for any content openly published by the user through Weibo service, the user agrees Sina have the free, permanent, irrevocable, non-exclusive and full relicensing rights and licenses, and could thereby use, copy, adapt, modify, translate, or recreate based on the original content for the new work, communication, performance or display the content (all or part of), and/or to integrate the content into the existing known or later created works, media or technology in any methods.

Lawyer Contacts

You Yunting86-21-52134918  youyunting@debund.com/yytbest@gmail.com

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