ABSTRACT
The major social media platforms, including “Facebook”, “Instagram”, “YouTube”, “Twitter”, and “LinkedIn”, are frequently observed “deleting” or “pulling down” information from their sites that violates the IP rights of the right holders. These platforms have “specific policies” and “processes” in place to safeguard the rights of IP owners and remove any potentially infringing content they may be hosting. For instance, the “Rights Manager” feature on “Facebook” and “Instagram” helps safeguard the material of IP holders by identifying any content that resembles the original work. They also have established procedures to report IP violations on their platforms by stating exactly which links or posts are allegedly infringing on the rights of the IP owners. Instagram said in 2020 that it does not support “embedding” and highlighted that an “explicit authorization” is always required from the original owner of any work before any copyrighted information is placed on Instagram. This remark was made in response to a case of copyright violation in the United States. YouTube, a platform for sharing videos, also has extensive IP security measures in place. Through a straightforward webform on this website, one may submit separate “takedown requests” for “copyright” and “trademark violations”. The same is true for Twitter’s trademark policy, which details what constitutes infringement and what doesn’t, and its copyright policy, which outlines what qualifies fair use and what doesn’t. (Banerjee)
One party that frequently finds itself the target” of legal action in situations of internet infringement is the “intermediary”, or the location where the infringing information was posted. These are the locations where anyone may go and ‘submit their work”, regardless of “whether or not” it violates the copyright of another person. In addition, it has become difficult for these websites to control the information that is placed on them, which has led to each of them “developing their own infringement rules” that they adhere to in order to reduce the danger of copyright infringement. The paper looks at when and if social media sites like Facebook, Twitter, and Google are responsible for the online behaviour of its users. The study will briefly review the relevant clauses before concentrating on India’s and the US’s current situations.
INTRODUCTION
Today, it’s possible that more people explore the “virtual” world than the physical one, and “Facebook may be the most frequently read “book.” Everybody is a “journalist” on social media, therefore “newspapers” and other “conventional media” no longer hold the monopoly on “public opinion”. YouTube”, “Instagram”, and other platforms pose a severe threat to “art galleries” and “exhibitions”. “Universities”, “libraries”, “scholars”, and “publishers” are no longer the only sources of information and “truth” judgments. The “conventional hallows of knowledge” are challenged by “virtual learning”, whereas reliable websites impart “knowledge” without charging any fees. Sharing of information has become more quicker and simpler because to social media tools like “WhatsApp”, “Messenger”, and “Instagram”.
As of “January 2022, there were 4.62 billion users”, which means that their “influence and reach” now extend to more than “half of the world’s population”. Our lives have been completely “transformed” by the introduction of “Internet intermediaries” including “Internet service providers”, “social media platforms”, and search engines.[1] Internet intermediaries making money off of “user-generated material”, especially “illegal content” like copyright infringements. Large organisations that “monetize” this material include “Facebook, Inc.” and “Alphabet, Inc”. (the parent company of “YouTube” and “Google”), who each make millions of crores annually. This raises a number of issues, including: Should they be required to keep an eye on the content that users “upload on their platforms”? Should they, even if they are its users, be “made responsible” for the activities of other parties? (Vishal)
PROVISIONS FOR EMERGING ISSUES OF ONLINE COPYRIGHT INFRINGEMENT
Copyright infringement is the “manufacture of an intellectual property work without the consent of the copyright owner”. When a “third party” infringes the “rights of the copyright owner, such as their exclusive ownership of a work for a certain amount of time, a copyright infringement occurs. Well-known entertainment goods like “music” and “movies” are frequently violated by “copycats”. “Future obligations” or “cash set aside” in the case of a lawsuit may emerge from infringement litigation. (Copyright Infringement Cases in India 2022) The principal acts of infringement are discussed in Section 51(a), whereas the subsidiary acts of infringement are discussed in Section 51(b). But I think a quick glance makes it clear that the section’s “writers” did not, unless a broad interpretation was provided, take into account the burgeoning problems of “online copyright infringement”. According to the clause, infringement occurs when someone violates a copyright without the owner’s “consent” or when the owner permits an infringement to occur somewhere for “financial gain”. The expression “any place” allows for the possibility of reading “internet pages” and contents as potential locations for intellectual property infringement. Thus, the question of “intermediary websites” is raised. (Vishal)
Internet intermediaries should be left to their own devices and not subject to governmental control, a view that was largely shared in the early days of the Internet. However, in an effort to stop infringement and recoup their losses, the owners of copyrighted content started holding these “internet intermediaries accountable” for the violations of their users. Religious Technology Center v. Netcom On-Line Communications Services, Inc. (907 F. Supp. 1361 (N.D. Cal. 1995)), one of the first cases to address the “issue of internet intermediaries’ liability” for online copyright infringement, held that while the “internet intermediary is not directly responsible for copyright violations committed by its subscribers”, it may be partially responsible if it “knew” or should have known about the violations. The rationale behind this is that because they operate as the gatekeepers to the Internet and web-based services, these intermediaries are best positioned to keep an eye on the actions of their subscribers and, as a result, can stop them from violating copyright. (Kamil)
The single chapter of the IT Act devoted to the topic of intermediary liability is Chapter XII. In the circumstances listed in Section 79 of the Act, the intermediary is excluded from liability relating third party information. The clause is comparable to the “safe harbour” provisions of the “Digital Millennium Copyright Act” in the United States and the “European E-Commerce Directive”. It specifically specifies that “an intermediary is not responsible for any content created by third parties.” The recent ruling against YouTube in M/s Shri Krishna International etc. v. Google India Pvt. Ltd. and others has demonstrated that the “safe harbour” will only be given if these requirements are met and if the intermediary actually played no part in the infringement at all. (Intermediary Liability)
CHALLENGES FACED BY INTERMEDIARIES
As was already said, intermediaries assume that the public has granted them permission to convey their opinions. Since they never know what could be uploaded on this website, they run a “very high risk” as a result. Following the publication of an “MMS film” showing two students in lewd situations, the “CEO of baazee.com (now eBay. in)” took the brunt of the criticism. Even though he was unaware that such information was placed on the internet, this led to the CEO’s incarceration. That lawsuit paved the way for holding ISPs and other middlemen accountable for the material put on them. As a result, even if they had a medium volume of material flow, it was almost impossible for the intermediaries to go over each and every article submitted to the website before publishing. This produced a highly unfriendly market position for them. In Facebook Inc. v. Surinder Malik & Ors2 and Instagram LLC v. Surinder Malik & Ors3, the Delhi High Court made it clear that “although online intermediaries like Facebook and Instagram may not actively participate in the posting of the infringing contents on their platforms, as facilitators of the infringement, they are under a duty to remove such content” as soon as it is brought to their attention or knowledge. (Intermediary Liability)
In order to reduce “dissent”, “hate speech”, “privacy violations”, and the like, governments all over the world are “putting more pressure on intermediaries to block their users’ objectionable online content.” This is because the majority of “creative expression” today takes place over communications networks run by private companies. Making communication intermediaries “legally liable” for the “actions and words” of their users is one way to exert pressure. Even as governments work to address very real policy issues, liability regimes that subject platform businesses to legal risk for users’ online activities constitute “censorship-by-proxy” and endanger both free “speech and innovation”.(Intermediary Liability)
But since the legislation does not clearly specify the type of content that is prohibited by the law, there is “little clarity” about the rule on intermediaries. What steps the intermediary should take when it discovers such information is “unclear”. Another reason why many intermediaries have taken matters of censorship into their “own hands” which doing so might be perceived as an infringement on the “constitutionally protected right to free speech” and “expression of users”. Because figures show that “takedown notices” have significantly grown, violating fundamental human rights and having a “chilling effect” on free expression mainly because intermediaries are trying to avoid their responsibility. This is what is typically seen nowadays. This is the reason India’s intermediary law is having issues. ( Liability of Online Intermediaries under the Copyright Regime)
DRAFT AMENDMENTS TO THE INFORMATION TECHNOLOGY (INTERMEDIARIES GUIDELINES) ACT, 2018
YouTubers, particularly those who focus on commentary, frequently respond to specific videos in order to produce their own material, which they then upload to their channels. Numerous tiny YouTube channels are persecuted by large corporations, which copyright strike their videos even when they utilise the content in accordance with YouTube’s “fair use” policies. “Reuploading photographs” by users without the “original uploader’s knowledge” or “authorization” is one of the most prevalent copyright infringement situations in social media today. When it comes to copyright infringement, “professional photographers”, “journalists”, “video producers”, and “vocalists” are the worst victims. A “Haitian photographer was given $1.22 million in 2013” when businesses began using the images of the disaster he had already uploaded on social media. Social media has seen the emergence of the meme notion in recent years as a means of disseminating humorous representation in the form of visuals. Meme producers typically post them with specific context to make them appear hilarious by using a video clip, an image from a movie, or any other copyrighted depiction. (Dhankhar)
Due to the shifting character of “internet intermediary liability”, it has been suggested that the intermediary regulations be modified in 2018. This has created a lot of discussion about the “Draft Amendments to the Information Technology (Intermediaries Guidelines) Act, 2018”. According to it, in order to identify illegal content on the platforms, the intermediaries must apply automated filters, according to rule 3(9) of the proposed rules. The proposal was appropriately the target of a number of criticisms since it appeared to be a step closer to the privatisation of justice because it would allow intermediaries and their algorithms to control what material is published online. Although the most blatant inconsistency between the regulations and the constitutional legal framework (specifically with the Shreya Singhal Judgment) exists, there are other ramifications of such a rule for online copyright that might endanger the free flow of creative information online. (Nithya)
PROACTIVE MONITORING MECHANISM
The entire idea of proactive monitoring contests the “notice” and “takedown procedure” as well as the “safe harbour paradigm of intermediary immunity”. The “safe harbour paradigm” is founded on the fundamental notion that intermediates are simply that “they have no control over the material that is sent via platforms”. The safe harbour is only offered to intermediaries that act as nothing more than content carriers and passively transmit data from third parties. The intermediaries would no longer be seen as “passive intermediaries” but rather as companies that have complete control over the material on their platforms if requested to monitor the content on the platforms. This would be in direct opposition to the rationale supporting the safe harbour. Thus, it can only be inferred that a proactive monitoring system enabled by AI technologies would not be able to coexist with the safe harbour paradigm for intermediaries that is already in place in many countries, including India, the EU, and the USA. (Nithya)
“State-mandated proactive monitoring” would also result in adopting an unusual and risky deviation from the “Notice and Takedown process” that was being used in the majority of nations, much as how it conflicts with the “safe harbour paradigm”. This is because, unlike the “notice and takedown procedure”, which allowed users and courts to determine whether or not a given piece of information should remain online, “auto-filters” used by intermediaries would force these private business platforms to make that decision. Such auto-filters may even infringe the rights of the right owners guaranteed under section 14 of the Copyright Act of 1957 in the event of online copyrighted material. (Nithya)
Along with the issues with the current judicial system, it’s important to address the risk posed by AI-enabled systems that forecast “false positives”. There is a real risk that the filters would mistakenly identify a “non-infringing work as an infringing one”, resulting in the removal of the work from the platform. This is because not all AI tools can “comprehend or perceive some of the very well-established doctrines in copyright law” (like the degree of originality, the idea-expression dichotomy, etc.) as meticulously as a Court of Law. The problem of false positives by YouTube’s own freely used automatic filter tool, Content ID19, has been caused by the inability to recognise and detect works under the well-known copyright doctrine of fair use. According to platforms like YouTube, disclosing the criteria used by the AI technologies to evaluate the material would put them at danger of losing their competitive advantage. Because the filter’s algorithms are opaque, producers are unable to identify a legitimate technique to get beyond the automated tools of intermediaries. Since the AI technologies also block a particular piece of information from resurfacing on the site, the serious repercussions of false positives will be increased even more. This emphasises how dangerous proactive surveillance by intermediaries would be for the unrestricted spread of creative creations online. (Nithya)
WHATSAPP, TELEGRAM ENABLING THE CIRCULATION OF THE E-NEWSPAPERS
In Bennett Coleman Co. Ltd. v. Whatsapp Inc. and Ors, the Delhi High Court granted an ad interim injunction prohibiting the Defendants, including the popular instant messaging services WhatsApp and Telegram, from “copying”, “distributing”, “adopting”, “reproducing”, “transmitting”, or otherwise “disseminating the e-newspapers” published by the Plaintiff through any website or portal
The Plaintiff, who owns a number of well-known newspapers in India, including The Times of India, filed a lawsuit for copyright infringement against WhatsApp and Telegram on the grounds that “those services were illegally disseminating the plaintiff’s e-newspapers and violating the copyrights of the “original literary works” they had published in those publications.” The plaintiff claimed to be the sole owner of the copyright to the literary works, which included the freedom to duplicate and share the content in any format. Therefore, it was recognised that the Defendants were facilitating free downloads by freely broadcasting the e-newspapers. Additionally, it was claimed that users were regularly contributing PDF versions of electronic newspapers through various groups on these platforms.
The Hon’ble Justice ruled in favour of the plaintiff, saying that because “the plaintiff is a sole owner of the copyright in the claimed literary work, holds all rights to it in whatever material forms.” It is against the plaintiff’s rights for defendants to distribute copies of the plaintiff’s electronic newspapers in this manner. The Court issued notices to “WhatsApp, Telegram and other Defendants who were allegedly involved in or enabling the circulation of the e-newspapers of the Plaintiff.”
PIRACY THROUGH SOCIAL MEDIA PLATFORMS AND MESSAGING APPLICATIONS
It is important to remember that copyrighted content has been threatened by piracy in the entertainment sector since the advent of “DVDs and CD players”; nevertheless, in recent years, pirated content has spread more widely thanks to internet streaming and mobile applications. In the case Zee Entertainment Enterprises v. Tejendra Modi and Ors., the plaintiff alleged that the cinematographic film “Radhe: Your Most Wanted Bhai” (the “film”) violated their exclusive licencing and exploitation rights. The plaintiff claimed that once the movie was made available on their digital entertainment streaming service, it was pirated on social media sites and through messaging services like WhatsApp. The Plaintiff alleged that the Defendants were disseminating the movie’s material on social media sites like WhatsApp, even though the app’s Terms of Service explicitly prohibit users from abusing their services to violate intellectual property rights. A temporary injunction prohibiting the defendants from “unauthorizedly storing”, “reproducing”, “communicating”, “disseminating”, “circulating”, “copying”, “selling”, “offering for sale” or “making available copies of the film or any other portion thereof”, through WhatsApp or any other means or modes, that may infringe the Plaintiff’s copyright in the film” was issued by the Delhi High Court as a result. It is also important to note that the Court in this instance reversed the instructions included in the earlier judgement wherein the Court had suspended the WhatsApp accounts of certain Defendants and acknowledged the necessity for “actual knowledge” for intermediaries to be held accountable. (Sehgal)
COPYRIGHT INFRINGEMENT IN THE UNITED STATES OF AMERICA
The “doctrine of inducement” has frequently been used by American courts to decide “whether a distributor (intermediary) actively encourages the use of its platform or device to violate copyrighted content”. In MGM Studios v. Grokster Ltd., the U.S. Supreme Court ruled unanimously that the defendant, a company that facilitates “peer-to-peer file sharing”, could be held liable for IPR infringement on the grounds that it actively encouraged “file sharing and profited from third parties “direct infringement of its intellectual property.
In addition, the United States District Court for the Southern District of New York held that “it would be practical to assert an equal claim of infringement against the defendant since it exercises control over and benefits from the dissemination of such messages” in Arista Records LLC v. Lime Group LLC (discussed on the blog here), even though the court granted a “permanent injunction to shut down the defendant’s file-sharing service”. This verdict was likewise largely founded on the law of inducement, which states that the intermediary who encouraged infringement and indirectly supported it did so in order to benefit. (Iyer)
In re Aimster Copyright Litigation, the U.S. District Court for the Northern District of Illinois addressed the issue of contributory infringement. Since it was difficult to enforce rights individually due to the enormous number of infringers at once, the court placed indirect liability on the intermediary. According to the court, “enforcing accountability against the middleman would be the only workable solution among millions of consumers”. The intermediate was unable to manage all users, but it was able to remove specific content after being informed to do so. Therefore, it is suggested that “the intermediary should be held accountable under the Aimster Rule” when content is not removed because they were indirect contributors. (Iyer)
BALANCE BETWEEN OVER-ENFORCEMENT AND UNDER ENFORCEMENT.
Finding a balance between “over- and under-enforcing copyright laws” is, in my opinion, the major problem with the responsibility imposed on internet intermediaries and its repercussions. On the one hand, excessive oversight of intermediaries would stifle the development of innovative and valuable services, limit market participation, and impede the exercise of fundamental constitutional rights. On the other hand, if the platforms are not closely watched, they may become regular enablers of intellectual property violations, which would stifle online creativity. In order to deal with the overabundance of notifications to take down content, which was implemented to address the aforementioned problem, intermediaries have been forced to participate in enforcement mechanisms using automated algorithms that would filter content that would subject them to liability. (Iyer)
There are several strong reasons against this approach, some of which have been stated in this article, as fresh discussions have erupted over the use of autofilters by internet intermediaries. However, the necessity to enforce such automatic algorithmic struggles has not yet gained much traction. This proactive screening method used by intermediaries in the context of copyright violations would do “more harm than good”. Instead of reducing online copyright violations, it would create conditions that would be extremely harmful to the online spread of creative work. The technique also obviously contradicts the current “safe harbour and notice and takedown models”. Therefore, any legislation that requires internet intermediaries to engage in this practise of AI-enabled auto filtering is a bad move. (Nithya)
WAY FORWARD
The idea of copyright is not all-inclusive. The present issue facing our nation is not a desire to replicate the content of another person’s work, but rather a lack of understanding of copyright rules. Many individuals may not understand all that falls under the definition of “fair use” and what does not, and as a result, they subsequently face the repercussions of copyright infringement through drawn-out legal processes. Therefore, in order to use another person’s original invention, the required permits, licences, and royalties must be obtained. (Dhankhar)
The buck should not stop here, even “when laws are passed and economic crime theories” are put into practise in India. The owners of the copyrights must work hard to identify ways to be more “vigilant”, “assist in forming policies”, “inform decision-makers” when necessary, and “effectively punish infractions”. The “largest publishing market” in the world now is India, which is working hard to catch up with the global situation. A person produces their opinion when they publish something, and in a democracy, that view needs to be “respected”, “defended”, and “safeguarded”. Emerging economies suffer significant losses as a result of copyright violations, and every effort must be taken to minimise these losses. (Dhankhar)
CONCLUSION
In conclusion, the judiciary appears to favour preserving intellectual property, particularly copyrighted content that circulates freely online. According to recent trends, the courts are starting to identify the constantly changing and novel ways that are being used to violate intellectual property rights as a result of technical advancement and the quickening of time brought on by Covid-19. The Judiciary nonetheless appears to be wary of all the issues at play and conscious of the need to strike a “fair balance between the right to free speech, the safe harbour protections” for intermediary liability under Section 79 of the Information Technology Act of 2000, and the rights of copyright holders. (Banerjee)
Copyright and trade mark owners’ intellectual property rights are increasingly under jeopardy as vlogs and reels circulate online. However, it is important to keep in mind that social media sites may only be held liable for IP violations to the degree that IP holders are careful in protecting their rights and notifying intermediaries of any violations. The potential of social media as a digital platform for the dissemination of material produced by a person or organisation is boundless. Social media is, by far, the most effective and convenient medium for the average person to publish and disseminate his or her work of intellect to the general audience. With the ease with which one’s IP may be shared via social media platforms also comes the possibility of IP infringement. IP infringement on social networking sites is frequent in the modern digital era. Such cases of intellectual property infringement inevitably put the middlemen that these social media sites are under the spotlight. (Banerjee)
BIIBLIOGRAPHY
- Banerjee, Tiyasa. “IP Violations on Social Media Platforms and the Role of Intermediaries – Trademark – India.” IP Violations On Social Media Platforms And The Role Of Intermediaries – Trademark – India, Sujata Chaudhri IP Attorneys, 9 June 2022, https://www.mondaq.com/india/trademark/1200208/ip-violations-on-social-media-platforms-and-the-role-of-intermediaries.
- Vishal, Vatsalya, and Aditya Sharma. “Into the Crosshairs – The Liability of Online Intermediaries in Case of Copyright Infringement.” Nirma University Law Journal, vol. 8, no. 1, December 2018, pp. 89-96. HeinOnline.
- “Copyright Infringement Cases in India 2022.” Vakil Search, https://vakilsearch.com/blog/copyright-infringement-cases-in-india/.
