Volunteering for the platforms – How social media terms of service may violate the fair remuneration principle of authors and performers

Major social media terms of service (i.e., YouTube, TikTok, Facebook, Instagram, LinkedIn, X) impose to users a royalty-free license covering uploaded “content” protected by intellectual property rights (“IPRs”). Consequently, while social media service providers’ revenues are significant, users that are also authors and performers do not directly receive any remuneration in most cases. Most recently, the benefits of training artificial intelligence (“AI”) tools on what is published on social media further intensify this imbalance. This bargain has not gone completely unnoticed. However, the doctrine often questioned the workability of any legislative or judicial intervention aimed at restoring balance. This article argues that online social media service providers have an obligation under EU law to share the revenues derived from the exploitation of works and performances published on their platforms with authors and performers. For this purpose, this work discusses the legitimacy of free licenses with the fair remuneration principle of authors and performers. It interprets the so-called “Linux clause” of Recital 82 Directive (EU) 2019/790 (“CDSMD”) and proposes a distinction between “free licences for the benefit of any users” (“open licenses”) and those for the benefit of specific licensees (“gratuitous licenses”). Abuses by the general public cannot occur in the case of open licenses. On the contrary, specific licensees who have a stronger position could unfairly impose gratuitous licenses to authors and performers. This inquiry runs in parallel with a recent litigation in Belgium on the matter (the “Streamz” case).