Can a Retweet Infringe Copyright?

Nawata v Twitter

Abstract

Courts across the world are struggling with digital copyright. In Japan, the Intellectual Property High Court confronted several new questions in Nawata v Twitter. The Court ultimately found three Twitter users were liable for moral rights infringement because they retweeted a tweet which itself contained infringing material.

As the IP High Court’s reasoning illustrates, courts continue to face difficulty when moulding copyright law to a rapidly changing sphere of expression and creativity. With a summary and translation of the case, this article examines three such ongoing difficulties.

The first is whether inline links should be treated differently from other internet links for copyright liability. As they differ both in programmed function and in how they present to the viewing user, courts must ask whether function or appearance is more important and why. The second difficulty is whether judges actually understand the emerging technologies upon which they adjudicate. Despite the establishment of a specialised IP court and nearly 20 years of government investment in judicial understanding of IP, many inconsistencies still trace back to an incomplete understanding of the underlying technology. The final difficulty is in finding an appropriate balance between the owner and user of copyrighted works on digital platforms. Fundamentally, copyright must balance the incentive to create against public access, but the balance online currently skews towards copyright owners.

Nawata v Twitter crystallizes a common problem in sharing online works. Given the ubiquity of social media platforms and how quickly online content spreads, this article ultimately calls for a consistent and coherent jurisprudence based on the resolution of the above three issues.