Rethink Before You Repost Or Retweet

Author – Vidhi Periwal, Rajiv Gandhi National University of Law, Patiala

Co-Author – Kumar Ankit, Rajiv Gandhi National University of Law, Patiala

Introduction

The way we connect and the network has been revolutionized by social media. Users will use this forum to share their artistic works with the rest of the world. Users make extensive use of this feature, with Facebook, Instagram, Flickr, Snapchat, and WhatsApp users alone uploading 1.8 billion images per day (2014 data).[1] It is this structure that allows people to easily exchange information from anywhere on the globe, as long as they have an internet connection. Sharing photographs that other people share on their accounts is something that everyone does very often while visiting social media websites.

Social Media and Copyright:

The diversity of material posted on the internet is strictly regarded as a creative production, to which intellectual property law applies.

Copyright – the author’s ownership of his artistic or literary material, as well as the freedom to encourage anyone to use his copyrighted work. The Copyright Act, 1957 regulates the matter of copyright law in India (which has been amended several times and the latest being The Copyright Amendment Act, 2012).[2] However, with the introduction of new social media sites as well as several photo-sharing applications, the looming possibility of potential copyright infringement by photo sharing has become an ever-present phenomenon. However, this action raises the issue of whether the act of posting another person’s image becomes a potential copyright violation.

The solution to this question can be found in the social media platforms’ “terms and conditions.” It stipulates terms of usage that a customer must strictly abide with in order to use the app, which we simply don’t read, because we have no idea what we signed with and are bound by terms that we didn’t even read or understand. Let’s understand this by taking the example of Instagram.

 How Copyright works with Instagram?

There is a widespread, although erroneous, misconception that information on social networking networks and the Internet is used openly to the point that everything contained there is generally freely accessible, readily present without any cost. Numerous people agree that all media platforms content ‘is present for everyone to use it and it is free for all.’[3]This, though, is not the case. When, the content is published on social networking platforms (either on any individual user profile or any social media page dedicated to a particular manufacture, brand, or company), it is simply published. However, this doesn’t imply that the privileges of media platforms  users are immediately transferred to anyone, allowing others to exploit the content however they see fit. According to Instagram’s arguments, the customer is the sole owner of the image or content. However, the customer grants Instagram a “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use their content,” according to the terms and conditions.[4] Aside from the fact that it is a non-exclusive license, this ensures that Instagram has the full rights of the original owner of the posted content. The material is usually only permitted to be used inside the social media network, in association with it, or in connection with the services offered by it. As a result, no other use or purpose is permissible. The provisions of each social media site’s license must be weighed in order to validate the authorized uses in each case and at any given time.[5]

In its abstract, the 2020 Case of Jack Schroeder v. Volvo Group North America [6]can seem to be a no-brainer. Plaintiff took a photograph, and the defendant republished it without permission, which would usually be considered copyright infringement. The fact that Plaintiff posted his photos to Instagram complicates matters.[7] Many social media sites have terms of service agreements that enable the platform to licensee media posted to the platform. If Instagram has the right to use Plaintiff’s images, Defendant may not be responsible for copyright infringement.

Instagram recently restated its terms of use to make it clear that republishing an image shared on the social media platform can necessitate obtaining a licensee from the copyright holder. It remains to be seen how this impacts the conflict between the Plaintiff and Defendant in his lawsuit.[8]Therefore, there exists a lot of ambiguities regarding copyright provisions in Social Media due to the easy availability of data, carelessness of users regarding the terms of use, the old laws not able to cope up with the ever changing and ever growing role of social media and the Fair Use Doctrine, the explanation of which is completely upon the discretion of the Court.

What is Fair Use Doctrine?

The phrase “fair dealing” is not defined in the Act. It is a legal doctrine that enables an individual to make limited use of copyrighted content without the owner’s permission. If a person’s use of copyright content is “fair” depends solely on the facts and circumstances of a particular situation. The distinction between “fair dealing” and copyright infringement is a thin line. There are no set guidelines in India that define the number of words or passages that can be used without permission from the author. It is completely upon what the courts thinks about the case, so it is a very subjective concept and completely upon the discretion of the court. It might, notwithstanding, be said that the removed bit ought to be with the end goal that it doesn’t influence the significant interest of the Creator. “Reasonable managing is a huge constraint on the restrictive right of the copyright proprietor. It has been deciphered by the courts on various events by making a decision about the financial effect it has on the copyright proprietor. At the point when the financial effect is minor, the utilization might be viewed as reasonable managing.”

While deciding if the use is a copyright encroachment or falls under the reasonable use convention, four central point are considered:

• The Purpose behind utilizing copyright work: It considers whether the utilization is absolutely business or instructive. Since instructive utilizations are bound to be viewed as reasonable use, posting a short passage from an exploration paper on a school class site would undoubtedly be satisfactory.
• The nature of the copyright work: Some assertions taken from an examination paper and posted in an online exploration local area is bound to be reasonable use than sharing any other individual’s marriage photos on your feed on the grounds that the assertions, not the feline video, appears to be instructive in nature, similar to the utilization.
• The measure of copyright  work utilized: Reposting a five second clasp of an-hour inspirational video on Gour Gopal Das on Instagram is bound to be considered reasonable use instead of reposting an entire five-second image from some acclaimed instagram page without giving due credit to the real maker, since the previous is a lower extent of absolute work.
• How the utilization impacts the market or worth of the work?  On the off chance that reuse makes it more hard for the creator to market or patent the workmanship, it is probably not going to be viewed as reasonable use. For instance, gluing the whole content of a blog entry onto your Facebook course of events could bring about the writer losing snaps or traffic, just as making it more hard for the writer to exchange the work somewhere else, putting the circumstance past the extent of reasonable use.

In India, section 52 of Copyright Act, 1957, mentions a list of acts which are not to be regarded as copyright infringement but the list is not exhaustive. Since, the world is changing at a fast pace, the laws need to be as flexible. A number of copyright cases are pending in the courts related to social websites but due to the ambiguity and unclearity of the law, the judgement is delayed.

Conclusion:

One thing is certain: when we use social media, we must be mindful that intellectual property law extends to all contents that satisfy the criteria for being considered works capable of being covered. Have a copyright note on the file for images to protect the content. Often, keep in mind that the land might be appropriated by others (not associated with the social media site). You must be diligent in order to keep track of any offences and to file reports as soon as possible. You will not be able to defend your allegations in a lawsuit if you are inattentive.

Most copyright infringements are settled out of court, so there is a paucity of case law on specific violations in the social media realm. But that doesn’t necessarily reduce your risk of legal action if you do infringe upon someone’s copyright.[9]

[1] “We’re Now Posting a Staggering 1.8 Billion Photos Every Day.” Business Insider, www.businessinsider.in/tech/were-now-posting-a-staggering-1-8-billion-photos-every-day/articleshow/35687752.cms.  Accessed 15 June 2021.

[2] Singhania, et al. “Indian Copyright Laws | Lexology.” Www.lexology.com, www.lexology.com/library/detail.aspx?g=e963324a-4b62-49ab-bd90-aeddb1aee2b0. Accessed June 10,2021

[3] Diva Rai. “Social Media and Copyright: Everything You Need to Know about It.” IPleaders, 13 Apr. 2020, blog.ipleaders.in/social-media-copyright/.  Accessed 15 June 2021.

[4] Naidoo, LegalVision-Vee. “Who Owns the Copyright in an Instagram Image? | Lexology.” Www.lexology.com, www.lexology.com/library/detail.aspx?g=0e178580-108a-4394-9fa0-1c6c2f5a6b41.  Accessed 15 June 2021.

[5] SUPRA Note 3

[6] Jack Schroeder and Britni Sumida v. Volvo Group North America, LLC, et al., 2:20-cv-05127 (C.D.Cal.). Accessed June11,2021

[7] Car Manufacturer Sued for Using Instagram Photos in Ads. SCHROEDER v. VOLVO – Uspatentlaw.cn. uspatentlaw.cn/en/car-manufacturer-sued-for-using-instagram-photos-in-ads-schroeder-v-volvo.  Accessed 15 June 2021.

[8] SUPRA Note 7

[9] “Expensive Copyright Mistakes That Brands Make on Social Media | PhotoShelter Stories.” Stories.photoshelter.com, 21 June 2018, stories.photoshelter.com/expensive-copyright-mistakes-that-brands-make-on-social-media/. Accessed 15 June 2021.