It is time users put pressure on all stakeholders, including the legislature, to ensure stricter control on platforms to protect the copyrights of users
M, a stand-up comic, creates a story and posts it on her Instagram page. Within hours, her story is viewed and shared by millions of people on the internet. Soon, she discovers that somebody has converted her story into a short film and it is available on YouTube. Livid, M wants the short film to be removed and seeks damages against her copyright infringement.
A lot of questions flow from here. Does M have the copyright over the film? How will she get it removed? What if the producer of the film claims copyright on the same? What can be done if the film was shared by the producer on several other platforms?
Copyright is that division of Intellectual Property Rights (IPRs) which deals with literature and art. The Copyright Act gives economic and moral rights to an author. While economic rights broadly include the right to authorise any person to reproduce, store, issue copies, perform in public, translate and adapt with respect to a literary, dramatic, musical, artistic, cinematographic work; rights related to a computer programme additionally include the right to sell and rent.
Moral rights include the right to paternity and integrity i.e. the author’s claim to authorship and right to claim damages if the work is mutilated, distorted, modified and if such an act is prejudicial to his/her reputation.
Originality is the base of copyright protection. The apex court in Eastern Book Company and Ors. vs. DB Modak and Ors has held that, “The word original does not mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas but with the expression of thought, and in the case of literary work, with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression be in an original or novel form, but that the work must not be copied from another work — that it should originate from the author; and as regards compilation, originality is a matter of degree depending on the amount of skill, judgment or labour that has been involved in making the compilation.”
Hence, the word original cannot be interpreted in its literal sense, a derivative work can also qualify for a copyright work subject to the skill, labour, capital and other factors depending on the facts of the case.
Copyright subsists on its creation. However, the owner of the copyright is distinct from the author to whom the copyright belongs on its creation. The author is normally the first owner of the copyright unless it is created under the circumstances enumerated under Section 17 of the Act, which provides for the first owner of the copyright in different situations. In compliance with the Digital Millennium Copyright Act (DMCA), most social media platforms like Facebook have included a copyright policy in their terms and conditions.
Facebook: Its copyright policy is formulated under and in compliance with the DMCA which is a UN Copyright Law. Its terms of service and community standard clearly state that a user cannot post anything which violates someone’s IPR. Ownership of a content lies with the creator. An internal notice-and-take down procedure set out under the DMCA Act is followed by it, under which, a content infringing copyright can be reported to Facebook. Upon receiving a complaint Facebook may remove the content without informing the alleged infringer. However, Facebook will send an e-mail and notification to the infringer, giving the complaint and details of the complainant. The infringer may choose to resolve the issue with the plaintiff or file a counter-notification. If the complainant does not respond to the counter-notification and intimate that s/he has approached court seeking an order to keep the content down, Facebook will restore it.
YouTube: It has a strict copyright policy and provides content ID which manages and identifies content of the owners on YouTube. A video uploaded on YouTube is scanned against the database of files that have been submitted by content owners. An owner has the option to block such videos, monetise them by running ads or by sharing revenue with the uploader and track the viewership statistics. The take down process of YouTube is similar to that of Facebook in many ways.
Instagram: It provides an online form for reporting copyright infringement to the designated agent appointed under the DMCA Act. The copyright claim should have information reasonably sufficient to permit Instagram to locate such content. The claim must be accompanied with a declaration that the plaintiff in good faith believes that the content complained about is not authorised by the copyright owner, its agent, or the law; that the notice is accurate and that the complainant is copyright owner or authorised to act on behalf of the owner of an exclusive copyright that is allegedly infringed.
Twitter: It also responds to the copyright claim under the DMCA Act. Before making a copyright infringement complaint, Twitter advises the claimant to directly contact the person who has posted the content. Twitter has some prerequisites for parody, commentary and fan accounts. The account name and bio should clearly indicate that it does not have any affiliation with the subject of the account. Non-affiliation can be indicated by incorporating words such as (but not limited to) “parody,” “fake,” “fan,” or “commentary.”
Non-affiliation should be stated in a way that can be understood by the intended audience. Besides moral duty, these social media platforms are under statutory obligation to take necessary steps for avoiding any copyright conflicts. However, these policies are subject to exemption under the copyright law. For instance, fair use of copyright material is permitted and one which falls in public domain can also be used freely.
Though these social media platforms provide a detailed mechanism dealing with copyright infringement, it cannot be confused with the judicial procedure. These platforms do not have adjudicatory powers. The actions taken by them are merely precautionary, in order to avoid any copyright infringement.
A person aggrieved by such action can approach the competent court/tribunal for remedy and damages. However, despite precautionary steps copyright infringement is not rare. Having evolved as platforms for sharing ideas and showcasing artistic skills, with a massive upsurge during the recent lockdowns, it is time users put pressure on all stakeholders, including the legislature, to ensure stricter control on social media platforms to protect the copyrights of users.
(Ray is partner and Priyadarshini is associate, TRS Law Offices)