Open Access Research Article
Your Entertainment, Someones Ownership: A Study Of Copyright Issues In Relation To Social Media
Published Paper
Article Details
Authored By - Gunjan Wadhwa
Indore
Institute Of Law
·
OBJECTIVES OF RESEARCH
This study will help us to understand the extent of
applicability and infringement of copyright in the world of social media. To
achieve this, the object of the study would include emphasize on:
i.
ownership over the content available on
these platforms.
ii.
applicability of copyright law on social
media platforms
iii.
extent of activities which would cause
copyright violation on these platforms.
iv.
disputes regarding copied content on
social media are resolved.
v.
how a person can protect his content on
social media.
·
SCOPE OF STUDY
The study provides an insight regarding the regulation of
original content on social media networks. It involves a doctrinal study on
when infringement is said to be caused on social media with regards to
different circumstances such as photographs, tweets, music etc.
·
HYPOTHESIS OF RESEARCH
It is hypothesized that-
i.
The social media platforms themselves
have some ownership over the content available on these platforms.
ii.
There are certain acts which can result
in copyright infringement on social media networks.
iii.
The social media platforms themselves
provide some remedy to protect the content of the owner,
iv.
The criteria of measuring the flow of
content on social media is different then that in the analogical world.
·
SOURCES
This paper is primarily based on secondary sources that include both
printed and non-printed materials. Printed material includes books and
non-printed material includes data obtained from online database.
·
RESEARCH METHEDOLOGY
Research methodology applied in
this project is doctrinal. An explanatory study is used order to find
underlying principles; therefore, the data would be mainly collected from
secondary sources of information. These include books, journals and internet.
Keeping this in view the researcher has gone through several books and web
references.
·
RESEARCH QUESTIONS
i.
Who
is regarded as the rightful owner of all the content available on social media
platforms?
ii.
What
activity done by a person on social media would violate the right of the
original creator of the work?
iii.
Do
these networks have any policy to protect the rights of such creators?
iv.
Whether
these networks provide any dispute resolution mechanism by which a person can
protect their rights in case of copyright infringement?
v.
Is
there any absolute or fool proof way to protect our content from being ‘copied’
by others on social media?
ABSTRACT
After the revolution of the world in 1991 by the LPG policy, a new era of
Digitalization emerged during the 20th century. Though in India,
digitization could be traced back up to about two decades where emergence of
internet was seen and it was considered to be of a great value. However, in
today’s era using the Internet is like using a spoon to eat. The concept of digitalization
emerged in order to provide the people a better living standard wherginre they
would be able to access piles of global information to enhance their knowledge.
It even helped the people to connect to each other at a global level through
the means of social media. Today every person has the access to one social
media account or another through platforms such as Instagram, twitter,
Facebook, YouTube etc. Through these networks a person can share any ideas,
videos or images to others by way of virtual communication. These ideas,
videos, images etc not only became a source of entertainment for people by
being “shared” to large masses but it also provided a global platform to people
to enhance their business and earn a living. However, all of these sources must have been
owned and created by a person, thus giving them the exclusive rights of an
owner under Copyright right law. The unregulated flow of content shared on
these networks may result in difficulties to establish about the true owner of
the work as these contents are regularly shared by a third party, being an
individual or a company, either for their own mala fide gain or
sometimes merely for entertainment purposes. Through this article the author
focuses on the application of copyright law in case of these social media
networks by emphasising on the ownerships, infringement and liability arising
in such cases. The author also emphasis
on when the sharing of such content would amount to infringement by the means
of doctrines and the mechanisms of how the rights of such owners are protected.
KEYWORDS- Copyright, social media, Content,
Owner, Fair use, Infringement etc.
INTRODUCTION
Social media has become a part of our
day-to-day life now. It helps us to connect with people who are miles apart
from us. It helps in establishing an open economy for all, which is used by
every business whether big or small. Through the means of social media, a
person or “creator” shares their content in the form of text, images, videos,
audio clips, music, poems, photographs, writings, fanfictions etc. These
creations are then shared to a number of people at a large scale. However due
this sharing of content at a large scale the difference between a shared and an
original content becomes blurred. The people using social media at a daily
basis share this content without thinking about who the actual creator of the
content is. This further affect both the actual creator as well as the person
sharing/ resharing or reposting any such thing which wasn’t their own creation.
As we understand that the Indian
Copyright Act, 1957 applies to all original, literary, dramatic, musical, and
artistic work. It also applies to cinematography films and sound recordings.[1]
Thus, all the content we see on social media must be also owned by someone who
was the creator of that content. As, a general rule, it is eminent that every
owner of such work has certain exclusive rights over his creation which
requires that his work cannot be used by any other person without the owner’s
prior permission.
To understand whether such sharing of
content leads of an infringement of the rights of the owner and how liability
arises in such cases we also need to emphasise that who the actual owner of the
content on social media is.
OWNERSHIP AND ACCESSIBILTY OF CONTENT
ON SOCIAL MEDIA
When a person posts any idea or
creation of his own in any form over a social media platform, he becomes the
owner of such content. Thus, every work we see on social media whether it is a
tweet, photograph, video, audio clip, literary work or any work as such, it is
also owned by someone. The social media platform holds no ownership over the
content shared on their own network. Thus, in case when a person uses such
content, he will be liable towards the creator and not the social media network
itself.
Moreover, there is a great confusion
that all the content of such networks is freely accessible to all. Though as
per the general rule the owner has exclusive rights over his creation and thus
such work on social media cannot be used by any other person without the prior
permission of the owner, nor it can be owned by the social media network
itself, however, this rule is not absolute in nature. In certain cases, a
person while sharing his content on social media makes it permissible for
others to use his work within the network itself due to the terms of service of
such network.
For e.g. If a person writes a poem of
his own and post it on twitter, it can be retweeted to share to others.
However, if that poem from the tweet is copied by a person and shared on any
social media network without the permission or proper recognition to it owner,
it would amount to infringement of the rights of owner.
Due to this, every social media
network clearly mentions about the usage of content on the network. Like, in
the case of twitter, the terms of service clearly state that:
‘By submitting, posting or
displaying Content on or through the Services, you grant us a worldwide,
non-exclusive, royalty-free license (with the right to sublicense) to use,
copy, reproduce, process, adapt, modify, publish, transmit, display and
distribute such Content in any and all media or distribution methods now known
or later developed (for clarity, these rights include, for example, curating,
transforming, and translating). ………… You agree that such Content will not
contain material subject to copyright or other proprietary rights, unless you
have necessary permission or are otherwise legally entitled to post the
material and to grant us the license described above’.[2]
Thus, as per these guidelines it is
implied that when a person posts his creation on social media, he/ she makes it
accessible for the world to use, copy, adapt, modify or publish such content.
By agreeing to such terms of use the owner himself gives a license to these
networks to make their content accessible to all without any payment.
INFRINGEMENT OF COPYRIGHT
In a legal sense
‘infringement’ is referred to as “A breaking into; a trespass or encroachment
upon; a violation of a law, regulation, contract, or right. Used especially of
invasions of the rights secured by patents, copyrights, and trademarks.”[3]
A lot of confusion arises regarding
infringement of copyright law in India as the content present on social media
are not registered by anyone. This is due to the fact that the content
available on social media platforms is easily accessible to every person in the
world. These are used and shared by third parties, such as individuals or
companies, on a daily basis. Moreover, the liability arising out due to such
infringement of right is limited in scope due to the terms of service of these
networks. Thus, it becomes important to realise that when this mere sharing of
such data would amount of infringement of the rights of the owner.
As a general rule, it is mandate that
every person who uses the creation of another causes the violation of the
rights of the owner. Accordingly, as mentioned in Section 51 it is expressed
that without a licence granted by
the owner of the copyright, action by any person, that violates anything that,
by virtue of the copyright, is exclusively conferred to the owner of the work,
shall be construed as infringement of the work. Thus, forwarding a video clip
or sound recording or images of performances definitely infringes the copyright
of the owner of those materials.[4] However this rule is subject to
certain exceptions as per sec 52 of the Indian Copyright Act.[5]
As per these exceptions, a work used
for a private or personal use would not amount to infringement of rights of
owner. Thus, the sharing of a content with any person through the means of chat
conversations shall not amount to such infringement. Moreover, they establish a
line between when a copied work would result in infringement of rights of
owner.
WHEN INFRINGMENT IS SAID TO BE CAUSED
Now as we understand that, even if as
per the terms of use of these social media network a content is freely
accessible to all of its users, but in certain cases infringement can be caused
even on social media and this can be caused in various ways possible. These
situations cause not infringement of copyright but may also regarded as
offences as per the cyber security violation, Indian Penal Code, 1860 as well
as the Information Technology Act, 2000.
The issue regarding when a work would
be said to be copyrighted is based on the principle of “Fair use”. This
principle is regarded in Section 52(a)of the Indian Copyright Act, 1957. As per
this section “a fair dealing with any work, not being a computer programme, for
the purposes of—
i.
private or personal use, including research;
ii.
criticism
or review, whether of that work or of any other work;
iii.
the
reporting of current events and current affairs, including the reporting of a lecture
delivered in public.”[6]
Would not amount to copyright
violation.
Other clauses of the same provision
also mention about certain different cases of exceptions to the general rule
such as making copies of computer programmes, reporting of current events,
Reproduction in case of judicial proceedings, Publication for use of
educational institutions, performance of literary work etc. Thus, in a
legislative sense, every work which would be under the domain of these clauses
would not amount to infringement of copyright.
However, when the judicial body
utilise this principle of fair dealing it emphasises on the particulars of the
case and determine whether the following act would lead to infringement or not
based on factors such as:
1. the
purpose of the work, as to whether such work is used is for a commercial activity
or for nonprofit or educational purpose;
2.
the nature of the copyrighted work;
3.
the amount or portion of the copied work in
relation to whole of such work; and
4.
the effect of such copy upon the potential market
for the copyrighted work owner.[7]
Thus, the fact that whether an act
done by a person, would actually violate the rights of some other person would
depend entirely on the circumstance. As these social media handles are a global
network on which content is shared in many form`s such as, images, videos,
tweets, etc, thus, copyright infringement is actually different in each of such
content.
In Case of Photographs, they might be either ‘shared’ by a
person by the means of native sharing tools available on the platform itself or
may be reposted by some other person. When such a content is reshared by means
such as retweets or adding it to their stories, it gives an automatic credit to
the actual owner of the work. Thus, no prior permission of the owner is
required in such cases. However, when these images are to be posted on the feed
of a person’s account, they need to have the permission of the actual owner of
the content.
Moreover, no social media handle
allows a person to post the content of an external website without the
permission of the owner. This simply means that if a person copies a work from
one network and posts it as their own on their handle, it would still amount to
infringement, if they do not seek prior permission.
If any of these photographs fall
under the ambit of doctrine of fair use or Section 52 of the Indian Copyright
Act, 1957, it would not arise any liability. Thus, a content which is merely
shared to provide any important information, for purposes such as teaching,
research, judicial or legislative etc and is done without having any mala fide
intention to seek any wrongful gain or derive any undue profit would not
infringe the rights of the owner of the content.
In Case of Tweets, they are exclusively available on
‘twitter’ network only. In case a person shares any of its original idea
in the form of a tweet, he becomes the automatic owner of such content. These
tweets can either be private or public depend on the account. By agreeing to
the terms of service of Twitter a person agrees that such original content can
be retweeted by other persons also. The process of re tweet gives an automatic
recognition to the actual owner of the content. However, such an idea should be
creative in nature and not merely a simple and ordinary text. Moreover, it is
important to understand that twitter only protects the exact words of a text
and not the idea behind the same.
Similarly, in the era of
Instagram reels, the issue regarding copyright is a subject matter of the music
used as well as the choreography of the work. Instagram as such does
not have any copyright over any type of music. The updates and guidelines for
including music in videos, by Instagram specifies certain conditions as in
accordance to which a person can include some music in their posts.[8] As
per these guidelines a person can post any content on their account and add a
short clip of music available on Instagram on it. Thus, it limits that-
a. the whole song cannot be added or a
long clip of the same
b. it should be accompanied by some
visual content
It also allows a person to post such
music which is recorded from some live performances. Thus, a person can access
any music available on the Instagram music library up to a certain extent.
However, when it comes to usage of a sound which is not available on the
Instagram itself, a person has to seek the permission of the sound’s owner.
Similarly, when a person recreates any song to create a cover song of their
own, they have to get the permission of the owner of the work along with the
information regarding their intention and the copy of the work
Now as it is essential that for the
usage of such music, a user can accompany it with some visual representation.
This visual representation can be in any form, from mere writing the lyrics of
such song or to dancing on the same. With the popularity of reels, the concept
of social media trends also expanded by which a person re-enacts a certain
choreography over the song to gain popularity. Though in most of the cases
these choreographies are re-enacted at a large scale without giving the due
credits to other, however the owner of such choreography has the right to claim
for the credits of his work.
This concept emerged when the creator
of the “savage challenge” namely Keara Wilson registered her choreography for
the challenge and thus claimed a right to receive credit as well as payment for
her work, and consequently the right to have a legal action in case on
infringement of the same.
Moreover, while talking about the
content on social media, one of these types still remain a grey area. It is not
properly backed by any provision nor any guideline. They are the fan pages
and the fanarts we see on such platforms. as the fanarts include some type
of creativity of their own thus the person who creates such arts becomes the
owner of it. However, in case of fan pages no creativity as such is used, they
are dedicated to any person, movie, show, book etc. Though such a person or
creator may refuse to any person to make any fan page dedicated to them to
protect their privacy, some of these creators actually encourage such pages.
The principle that whether these fan pages would violate the rights of the
owner depend on the purpose of these pages. A fan page can only be made for
entertainment purposes and not to generate revenue from someone else work.
Thus, the courts entirely rely on the principle of ‘fair use’ in such cases.
Thus, the content available to us on
social media can be re used by us as its users only under the domain of the
doctrine of “fair use”. If any of such content is used by a user with the
intention to gain any profit from the same, I would amount to copyright
infringement. Moreover, in the recent times the Indian Judiciary is also
relying on the principle of ‘de minimis non-curat lex’ meaning that “law is not concerned
with small things.” which is used by the
courts in order to reduce its burden by entertaining only such cases which
causes a severe harm to the copyright owner. This doctrine is based on 5
principles which are:
i.
the size and type of the harm,
ii.
the cost of adjudication,
iii.
the purpose of the violated legal obligation,
iv.
the effect on the legal rights of third parties, and
REMEDY AVAILABLE
In case where damage is caused to a
person due to such copyright infringement, they may seek remedy from the court.
However, in most of the cases this is not the scenario. This is due to the fact
that all the social media handles have certain guidelines which provide for a
mechanism in case of violation of copyright.
A glance at the help centre of
Instagram informs us that Instagram has dispute mechanism based on reports
regarding copyright infringement. Similarly in case on copyright violation a
person can file a report to Instagram by filling out a form at https://help.instagram.com/contact/552695131608132. Moreover, it also provides a Brand
Right Protection tool which allows a brand to protect their intellectual
properties over meta technology. A user may also send a Digital Millennium
Copyright Act (DMCA) report to the Designated agent by filling an online form
or by sending it to the address provided on the help centre.
When such a form is received by the
authorities of Instagram, they go by collecting all the information regarding
the copied work and if satisfied by the information provided by both parties it
may take down the copied content from the page.
PROTECTION OF CONTENT ON SOCIAL MEDIA
The issue regarding how a person can
protect their work from being used by other people on social media is quite a
black area. It is said that if you want to protect your work don’t post it on
social media at the first place. However, this solution is not practical in the
real-life scenario as now these networks not only provide entertainment or
information to a person but also act as a global market for various business
who use their social media handles to promote their brand.
A person may however, while posting
such work which is original in nature add some logo or watermark to the same to
prohibit others from taking credit of that work.
CONCLUSION
From the above data we can conclude that
copyright infringement is something which can be extended up to the online
world as well. Though, the social media handles make sure that a major part of
the content is freely available to the world but it also recognizes the rights
of the owner. The protection provided to such content is highly based on the
doctrine of ‘fair use’ by the courts. Moreover, to protect the rights of the
rightful owners of the content these social medial handles themselves provide a
dispute resolution mechanism in accordance to which they regulate the work
which is complained to be copyrighted and thus remove the content. This
mechanism helps in reducing the burden of the courts as well as the petty cases
are resolved internally only. However, if the cause heavy damage to the
creator, the victim also has the right to approach to the court. Even though,
the society as a whole has become digitalized there is still an autonomy
regrading the type of content which can be shared on social media without
violating the rights of the owner of the content.
REFERENCES
Statutes:
a. The Copyright Act, 1957
Webliography:
a. Fanfiction, Fan-Culture, Fan Art, And
Copyright Law https://www.mondaq.com/india/copyright/1178248/fanfiction-fan-culture--fan-art-and-copyright-law
b. What do you Understand by De minimis
non curat lex?
c.
Do Fan-Fictions Have a Copyright Protection In India?
d. Instagram Help centre
e.
Updates and Guidelines for Including Music in Video
f.
The Tangles of Copyright Law
and Instagram Reels
g.
Fair use policy
h.
Are Tweets Copyright-Protected?
i.
Copyright
Act And Photographs On Social Media
j.
Social Media and Copyright
k.
Fair Use In The Age Of Social Media
Journals:
a. RFMLR (2018)
62 Fan Fiction and the Fair Use Doctrine Under Copyright
Law by Divya Pinheiro
b. (2015)
PL (IT) December 76 “De Minimis” and Social Media Copyright Infringements
by Rajesh
Vellakkat
c. 5 JIPL
(2020) 69 Online Fan fictions and Copyright: A Conundrum of
Creativity and Infringement in Digital Era by Shama Mahajan
[3] The law dictionary, https://thelawdictionary.org/infringement/ (Last visited on 13th
June, 2023)
[7]Oliver
Herzfeld and Marc Aaron Melzer, Fair Use in The Age of Social Media, FORBES,
(May 26, 2016,09:34am EDT), https://www.forbes.com/sites/oliverherzfeld/2016/05/26/fair-use-in-the-age-of-social-media/?sh=4fa853c93300
[8]Updates
and Guidelines for Including Music in Video, INSTAGRAM, Posted on May 20, 2020, https://about.instagram.com/blog/tips-and-tricks/updates-and-guidelines-for-including-music-in-video/?ref=epidemicsound.com
Article Information
Your Entertainment, Someones Ownership: A Study Of Copyright Issues In Relation To Social Media
Authors: Gunjan Wadhwa
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/18
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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