You don't know TikTok? Then you probably don't have a daughter between the ages of 13 and 17.
Although, what does 17 mean here? Now during Corona times, even some established fashion bloggers who otherwise like to take their followers virtually to New York, Milan or Tokyo are discovering TikTok as a welcome communication channel.
Never mind, let me explain.
1. How TikTok works
TikTok is an app for your smartphone. You download it, register, and then you're actually good to go.
TikTok provides the user with a music library (called "sounds"). Hits from the current charts are very popular. Not the whole songs are provided, but only excerpts of 15, 30 or even 60 seconds. And in addition, a number of gadgets (filters, effects, beauty, etc.). ...
The user then gets the opportunity to film himself moving his lips to this music (lip sync), dancing or doing other funny things.
The user then presents the end product, i.e. the original music and his own pantomime, to others on the app in the hope that they will enjoy, like and follow his performance. In this way, our TikToker (Is that how you say it?) then becomes known and famous and may even earn money with it later on.
2. And what about copyright?
a) The problem is: The user uses other copyrighted works, for example hit songs from the current charts, when creating his video. The rights to these works belong to the composers of the music and the lyrics (or their record companies) and in Germany are mainly administered by GEMA.
One person, however, definitely has no rights to this copyrighted music, and that is our (usually underage) TikToker. Rather, she usually assumes that TikTok is the rights holder and that TikTok provides the user with the right to use the works. After all, it is an official app that can be downloaded from Apple's App Store or Google´s Playstore.
b) In fact, however, TikTok generally has no rights to the copyrighted works and does not provide such rights to the user. See below for update.
... This (End User Agreement) does not grant you a license to reproduce, distribute, publicly perform or communicate, synchronize or otherwise use and exploit any third party content, including, without limitation, with respect to sound recordings or musical works in your User Videos or with respect to Live Stream Content. You are responsible for obtaining the rights to any Third Party Content, particularly with respect to sound recordings or musical works for use in User Videos or with respect to Live Stream Content.
4. TikTok - rather absurd under copyright law
Thus, external appearance and copyright laws are miles apart.
In my opinion, the situation with TikTok is as if someone opens a store where there are many beautiful pictures, but the store owner does not own them. Then he invites his customers, mainly children and young people, with colorful posters to come into the store and redesign these pictures as they see fit, for example, painting over them, pasting them over, or adding funny splotches of color.
Somewhere in the back room, in a thick book, tightly printed and well hidden, it says: These pictures don't belong to the store owner at all. If you want to paint or paste over them, you have to ask the person who owns them first. How do you find out who the pictures belong to? That's your problem.
That's how it is with TikTok.
5. And why doesn't anyone do anything about it?
a) Well, it's not quite like that, that nobody does anything about it. From what you hear and read, TikTok is already in negotiations with the rights owners and the collecting societies (see for example beta.musikwoche.de/details/442166), but so far no agreement has been reached.
Recently, the well-informed Musik Woche reported: Music publishers, including the major label Universal Music Publishing, want to sue TikTok or have at least threatened to sue TikTok for copyright infringement (beta.musikwoche.de/details/449614).
TikTok argues that the app is a great opportunity for rights holders (composers, etc) to make their works even more popular. And there's probably a bit of truth to that.
b) So what are the options for rights holders and collecting societies?
Well, they could of course take action against the many small tik tokers who are violating copyright laws. But of course nobody wants that. No one wants to prohibit children and young people from enjoying the creative use of music, certainly not the music industry. And it probably wouldn't do much good either, except to scare away fans and potential customers.
c) In addition, it is probably hoped that an agreement will eventually be reached with TikTok, which will then provide the copyright holders with further licensing income. After all, it has to be said that TikTok has definitely struck a chord with its business idea and is addressing an obvious need among users to be creative themselves, using other people's works of course. But let's be honest: If you think away the music, i.e. the third-party work, then there is rather little creative work left, isn't there?
d) Would the authors have higher revenues if TikTok did not exist? Probably not. TikTok does not take anything away from the copyright holders that they would have without TikTok, but it merely withholds something from them to which they would actually be entitled thanks to TikTok.
In such a constellation, it would be counterproductive for copyright holders to "eliminate" TikTok. Instead, they have to try to get an appropriate share of the pot that TikTok has created. I also think that this will ultimately succeed. After all, YouTube has somehow reached an agreement with the collecting societies. In any case, the advertising industry is already waiting in the wings to follow YouTube and Instagram in placing their customers' products on a larger scale on TikTok as soon as this is legally possible.
The copyright situation in the use of TikTok is currently still abundantly absurd. Nevertheless, this app or platform offers opportunities and (revenue) possibilities to all parties involved, i.e. both TikTok itself and the rights holders as well as the users.
The only thing left to do is to find a way to distribute them appropriately.
Update: According to an article on www.musicbusinessworldwide.com dated 8 February 2021, TikTok has now signed agreements with all major record labels (Sony Music, Warner Music, and Universal Music Group) that allow TikTok users to incorporate their music into their clips. The artists (singers, songwriters) are said to receive "appropriate compensation" in return. ...
7. Data protection
Finally, a word about data protection. TikTok collects its users' data in an excessive manner. In line with the app's design, this also includes photos and images that can be used to recognize and identify users.
This is presumably a huge future market. Considering that TikTok is owned by a Chinese technology company (Beijing ByteDance Technology) - which, from what one hears and reads, is ultimately backed by the Chinese government - one might have some doubts as to whether TikTok is really just a fun and harmless toy for children and young people.
There are enough warnings against TikTok from the authorities responsible for youth and data protection on the Internet. However, it is doubtful whether children and young people (or their parents or guardians) will take any notice of them.
Those who warn against TikTok quickly find themselves in the role of the overly concerned father who wants to forbid the children from jumping into the cold pool in the summer because they could catch a cold in it. Oh, Dad, it's not that cold. And everyone else does it, too. ...
Dr. Wolfgang Gottwald
Rechtsanwalt/Attorney at Law