INTRODUCTION
The advent of digitization poses new issues for copyright law. Today, a digital file can be copied and instantaneously distributed worldwide through the Internet, thus potentially depriving the copyright holder of revenue from licensed sales. As a result, holders of copyright on creative works in digital format are contesting the right of consumers to make personal copies of copyrighted materials. At the same time, consumers are beginning to abrade at copyright owners’ use of digital technologies to prevent or deter copying and other unauthorized uses of copyrighted works. As digital processing grows more powerful and the high-speed distribution of digital content becomes more pervasive, the debate over copyright issues—in particular, whether copyright law has achieved the appropriate balance between incentives to engage in creative activity and the social benefits that arise from the widespread use of creative works—is likely to intensify. Yet the implications of any change to copyright law extend beyond the producers and consumers of copyrighted material to society at large. Investments in the computer hardware and communications industries, for example, are linked in part to the availability of creative content in digital form. How the current copyright debate is resolved, therefore, is likely to influence the growth of those related sectors of the economy. Potential revisions to copyright law may also have an impact on broader social concerns such as individual privacy. Revisions to copyright law could impose mandated costs on producers and consumers of copyrighted material, as well as the providers of goods and services used in conjunction with copyrighted works.
Advances in information technology—particularly the digitization of a growing volume of creative works and the increasingly rapid processing and distribution of digital content—are forcing a reassessment of how well copyright law defines the rights of copyright owners while recognizing the interests of consumers. This article emphasises on copyright law and copyright infringement and further recognises what leads to copyright infringement in the digital space and the protection associated with it.
What is Copyright?
Copyright is the Intellectual Property Right protection given to the creative ideas of people. It is the protection available to be sought by owners who have expressed their ideas into some form of music, art, poetry, film, script, videos etc.
What is Copyright Infringement?
Copyright infringement is said to take palce when, a person uses, advertises or steals a piece of work that originally belongs to someone else without the original owner’s permission.
Copyright Infringement in digital space: Instagram & Facebook
Copyright ownership over the images posted on Instagram-
As per Instagram’s claims, the ownership of the image or content rests with the user. However, as per the terms and conditions, the user permits Instagram a “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use their content”. This means that Instagram possesses the absolute rights of the original owner of the uploaded content, aside from the fact that it is a non-exclusive license. It is imperative that the photographers are well aware of this because if they sell an image that is under an exclusive license, posting such an image on Instagram would result in a breach of that license.
Does everything that I post under my profile get automatic copyright protection?
Well, this is a tricky question to answer. As per the terms of IG, it suggests the user makes sure only to post contents on the platform if the user is the creator, or rightful owner, or has obtained prior permission from the actual owner prior to posting such content. In the event of any copyright infringement, there is an option for reporting the content.
Therefore following steps are suggested before uploading content on IG:
- Putting a copyright symbol on the content.
- Include a link to the user’s email or website in the profile so people can easily obtain permission from the user prior to using such content.
- Posting only low-resolution images.
- Using watermarks on the content.
In addition to knowing the basic rules about copyright law, you should understand Instagram’s policy that governs your use of Instagram. Under Instagram’s terms, it broadly says that you cannot post anything that would violate someone else’s IP rights. Further, users can report content that they believe infringes their copyright to Instagram.
You can violate someone else’s copyright when you post or share their content on Instagram, even in situations where you, for example:
- gave credit to the author;
- modified or added your own material to the content; and
- found the content on the internet (e.g., using an image from Google Images).
- Therefore, before posting content on Instagram, you should take care to avoid infringing someone else’s copyright. Here are some ways you can do so:
1. Avoid Posting Content You Did Not Create Yourself
The best way to ensure that you do not infringe someone else’s copyright is only to post content that you have created yourself unless you are sure that you have all the required rights from the content owner. If there are multiple parties involved in creating the work, it is a good idea to have a written agreement that clearly states who owns the copyright in that work.
2. Ensure You Have Written Permission to Use Someone Else’s Content
If you need to post or share someone else’s content on Instagram, the best practice is to obtain the author’s permission in writing before posting. If the author is happy for you to post or share their content, they may require you to sign a license agreement and pay a license fee.
Alternatively, they may allow you to share the content as long as you give credit to them in the post. Either way, make sure you get the author’s permission in writing first before posting or sharing the content.
3. Know the Exceptions to Copyright Infringement and Seek Advice
In most countries, there is an exception to copyright infringement known as ‘fair dealing’ or ‘fair use’ (depending on your state or territory). There are differences between the two exceptions, so it is essential to know what applies here. Generally, the fair dealing exception allows people to use copyrighted material for the purposes of:
- research or study;
- criticism or review;
- parody or satire; or
- reporting news.
In addition to satisfying the criteria for one of the categories listed above, you must demonstrate that the use of the copyrighted material is ‘fair’, which is judged based on the circumstances and not personal opinion.
SOCIAL NETWORKING SITES’ POLICY DEALING WITH COPYRIGHT INFRIGEMENT-
According to Section 17(a) of the Indian Copyright Act the “first owners” of a literary work are the authors of that particular work, and provides that, first ownership will always rest with the author even if the rights of the concerned literary work have been transferred. In essence, this section provides that the photographer will be the first owner of the photograph and will have within him rights vested as such.
Further, as per the Facebook’s Statement of Rights and Responsibilities, by uploading any content on Facebook, the uploading party/user is, by way of such upload, licensing his intellectual property rights to Facebook. This is a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content. Thus, implying that, even though the user may be the original right-holder over content posted by him on Facebook, through the act of posting online he is giving Facebook an “IP License”. Such a condition is also included while posting content on Instagram as it is now acquired by Facebook and its terms and conditions applies to users of Instagram, until otherwise expressly implied.
Ways to make sure that the contents posted on Instagram are non-violative of the copyright provisions-
As per Instagram’s Terms of Use and Community Guidelines, a user can only post content on Instagram that is not violative of the copyright or other intellectual property rights of others. The best way to ensure this is to only post content that is created by the creator.
There remains a possibility of infringing someone else’s copyright while posting their content on Instagram, even if:
- The uploader has bought or downloaded such content (ex: a song from Spotify).
- The uploading user has recorded the content onto their own recording device (examples: background music at a party, concert, sporting event, wedding, etc.).
- The uploader has credited the copyright owner.
- The uploader has Included a disclaimer asserting that no copyright infringement was intended.
- The uploader does not intend to profit from it.
- The uploader has modified the work or added his original material to the content.
- The uploaded content has been obtained from the internet.
- The uploader saw others uploading the same content
- The uploader thought it to be under fair use.
Therefore, before posting on Instagram, one needs to determine :
- If he/she is the creator o such content?
- Does he/she is allowed to use all of the content included in their post?
- Whether the use of the content comes within an exception to Copyright infringement?
- Whether the content has copyright protection?
Usage of music on Instagram:
- Music in stories and traditional live music performances are permitted.
- The greater the number of full length recorded tracks in a video, the more likely it may be limited.
- Hence, shorter clips of music are recommended.
- There should always be a visual component to your video; recorded audio should not be the primary purpose of the video.
It is usually a good idea to obtain written permission from the author of the work, prior to posting the content on Instagram. The uploading user might have the ability to use someone else’s content on the platform if he has obtained prior permission from them, for eg: through obtaining a license. The user may also be able to use someone else’s content if the same is in the public domain, comes under the fair use, or there is another exception to copyright.
THE COPYRIGHT LAW AND ITS ENFORCEMENT IN DIFFERENT JURISDICTIONS WITH REGARD TO INFRINGEMENT ON DIGITAL MEDIA
Copyright Infringement in the digital space in the UK/Europe
In UK/Europe, copyright is often viewed as an automatic right. This goes on to mean that since the inception of creation of an artistic, musical, literary or cinematographic work, it is to be viewed as a copyrighted piece of work. There is no provision in the State to register separately to be granted a copyright protection. It is only upon an artistic work been infringed that the original author would have to seek registration of its original work in order to sought relief.
Resort On Instagram’s End With Regard To US DMCA
Instagram authority complies with the notice-and-takedown procedures in accordance with Section 512(c) of the United States Digital Millennium Copyright Act (DMCA), which is applicable to the reported content and removed for being violative of the U.S. copyrights.
If the content is removed under the DMCA, the user will receive instructions regarding filing a counter-notification, in the messages sent by the Instagram authority. The user should only submit a counter-notification if such content was removed because of a mistake or misidentification. However, if any content was removed unrelated to copyright or other intellectual property issues then the user shall not receive such notification.
When the Instagram authority receives a valid DMCA counter-notification, it forwards it to the reporter party of such content. The information received by the reporter party includes the contact information of the party filing the counter-notification, which they can use to contact the latter. If the IG authority provides the counter-notification to the reporter party, and they don’t notify the IG authority that they have filed a judicial suit seeking an order to keep the content down, the authority will restore or cease disabling eligible content under the DMCA. This process can take up to 14 business days. However, in rare instances, the IG authority may be unable to restore content due to technical limitations. If this happens, the counter notifier will be updated and permitted to post the content again at their discretion.
Any Content restored on the basis of an effective DMCA counter-notification will not be counted against if the user is under the IG’s repeat infringer policy.
WHAT FOLOWS THEN-
If the user has submitted a copyright report through the online form or via email, such user shall receive an automated email containing information about the report, including a unique report number. The user should save this number in case you need to contact us about your report.
Sometimes, Instagram might respond to the report and enquire for more information. If the user receives a message from the Instagram team requiring further information about the report, the user should respond directly to that message. The user’s response will be received by our team so they can continue to look into your report.
It is to be noted that Instagram regularly provides the uploader who posted the content with the following information about the report:
- Report number
- Rights owner’s name
- The email address provided by the reporting party
- Details of the report
- Instructions on how to submit an appeal
The user whose content was removed may contact the reporter with the information provided by the user. For this reason, the user may want to provide a valid professional email address.
CASE ANALYSIS:
Copyright vested in photos uploaded by users on Facebook has recently been recognized by the honorable High Court of Delhi in a recent judgement given by Justice Manmohan.
Facts of the Case[1]
In 2015, a conflict arose when the Plaintiff, Fairmount Hotels Pvt. Ltd. realized that the Defendant, Mr. Bhupender Singh had displayed the pictures belonging to the Plaintiff. Pictures of the hotel had been posted on the Facebook page of the Defendant without the requisite authorization or permission of the Plaintiff. Subsequently, a suit for infringement of copyright of the Plaintiff was filed before the Hon’ble High Court of Delhi. The Plaintiff submitted that such an act of the Defendant unfair means to attract the innocent people in the guise of the Plaintiff. It so happened, that the Defendant had been an employee of the Plaintiff and after leaving that service, had opened a hotel of his own in Manali and was using images of the Plaintiff for the promotion of his own new hotel.
Reliefs Sought
Plaintiff filed two suits; in the original suit, he sought an ex parte injunction against any further use of the concerned photographs by the Defendant on his Facebook page. The Plaintiff then also submitted in evidence, the concerned photographs to claim permanent Injunction. An interim injunction was thus passed against the Defendant following which the Defendant undertook not to misuse the photographs on his Facebook page. Further, after considering all submissions made by both parties, as well as the financial status of the Defendant, the Hon’ble High Court of Delhi granted a permanent injunction against the misuse of the photographs by the Defendant and issued a direction of 50,000 INR cost to be paid to the Plaintiff.
Analysis
Photographs are protected under copyright law as “artistic work” under Section 2 (c) of Copyright Act, 1957 in India. Although in India, as per section 25 of the Copyright Act, the Photographs are provided copyright protection for a period of 60 years from the date of publication, the term of protection varies from country to country. For example, the duration of protection provided by US/European Union is 70 years, while Berne convention provides minimum limit duration of protection of 50 years. Although copyright registration is not mandatory under Copyright Act, it is recommended, and the procedure can be completed with the Copyright Office.
However, it has been noted that malafide intention of a person sharing photographs should be considered imposing liability for infringement of copyright, with respect to photographs. If any individual looking to use/share/post pictures or photographs belonging to another person is doing so without the malafide intention to incur undue profits from it, he may not be infringing the Intellectual Property of the author. For example, in the above mentioned case of the Haitian photographer, companies that had wilfully sold his property for monetary gain were held liable for their malafide intent. Photographs can be utilized for teaching/research, legislative, judicial proceedings under the purview of fair use and are permissible for use of photographs even without the prior consent of the photographer.
RECENT TRENDS IN THE GUIDELINES OF INSTAGRAM
Instagram has released new guidelines that make it easier for users to avoid using copyrighted music in live videos, stories and other posts on the photo sharing platform. The new update includes a pop notification that comes over time to time to inform the users that they are using unlicensed music or art, to help them avoid violating rules.
In the case of live broadcasts, the warning notification pops up earlier gicing users more time to remove the audio so they can avoid having the stream disrupted or taken down.
As per the official statement read, “these notifications are intended to alert you when our systems detect that your broadcast or uploaded video may include music in a way that does not adhere to our licensing agreements”.
CONCLUSION
Therefore, it is inferable that a plethora of copyright issues can arise while posting pictures or other content on Instagram. The infringement can occur even if the person uploading an impugned content has no intention of infringing the copyright, or has credited the original owner or creator, or has added a disclaimer. However, it is advisable that any person uploading content or picture on the platform must acknowledge himself if he/she is the creator or owner, has permission to use such content, whether the use is permitted under copyright exception, whether such content is copyrighted?
However, an infringement can be reported only by the owner of the copyrighted content or an authorized agent. If someone notices any infringed content belonging to some other user, then such a user has to be intimated about such infringement. The state and municipal laws does not expressly speak about the procedure to follow in the instance of copyright infringement on the digital space. With passing time and advancement in technology, gaps have been discovered in the law enforcement process in this regard that needs to be bridged.
Instagram, alone acts really well in respect of infringement reports and they have a dedicated team for the same. However, there are certain provisions of the law on which the statute could be expected to be more expressly implied. Although, all three pillars of the government- the executive, legislature and judiciary are aware of the peculiarities posed by the high speed growth of social media, uncertainty remains as to whether the current IP laws and enforcement techniques can sufficiently address the ever evolving legal issues pertaining to use of artistic work in social networking sites.
[1] Fairmount Hotels Pvt. Ltd. vs. Bhupender Singh CS(COMM) 111 of 2018
©SOHINI GOSWAMI, DUCTUS EDGE
DUCTUS EDGE 