By Aman Tolwani

Introduction

21st century, the age of digitisation when everything around us is in digital mode, a well written thought by a renowned author fits this scenario, ”today we’re trying soo hard to capture each and every moment, that we are actually forgetting how to live every moment” we’re posting our whole life on social media, as well as life of others which in turn raises issues, which are not allowed by the law but is being allowed by tricky terms and conditions, which allow these social platforms to use our or someone else original work to be used by them, as they have acquired “non-exclusive transferable, sub-licensable, royalty-free, worldwide license” rights meaning thereby, for what you could have easily earned money now you are giving it for free, but at least someone is earning commercial gains.

Before going any further into the topic let’s have brief idea what copyright is all about, Copyright is a legal right that seeks to protect original works of authorship, such as books, music, film, video and art. Generally, copyright protects original expressions such as words or images. It does not protect facts and ideas, although it may protect the original words or images used to describe an idea.[i]

The copyright policies on Instagram and Facebook are such that, they can be changed as to whenever they deemed it fit, situation to situation, issues are raised as to why their policy is not permanent, for each new issue new policy is being introduced. Instagram can make money from advertisers that want to use someone’s face or pictures on any advertising (TV, web, magazines, newspapers, etc.) and never pay a penny to them!  Even worse, if someone is under 18 (meaning thereby that they don’t have the legal capacity to enter into a contract) yet they are making a contractual agreement that they have asked their parents or guardians permission to agree to the Instagram terms.  This not only is a idiotic position, but defies logic as well, Instagram acknowledges that minors can’t enter into a contract, but nevertheless for the under 18, force them to agree by (unenforceable) contract that they have permission anyway.  Go figure!

Social media, like Facebook, Twitter, and Instagram, allow online posting of material that may be copyrighted. The social media site does not own the work that has been posted on their site; the copyright is still retained by the owner. But by agreeing to post works on the site, you sign an agreement that gives the site a license to use the work. In these cases, the license is given without payment.[ii]​​

This research article deals with how copyright is being violated and how it can come how be protected, or at least the know how of what people have been giving their rights for.

In today’s global village or shall I say interconnected world, most of us are to some extent authors and publishers, and the apparent transience of material that appears briefly on Instagram or on Facebook and then fades from memory (just because you deleted the content or limit it’s visibility) is actually an illusion. Anything that makes it to the internet, whether it’s a web site, a photograph or sound file, or a one-line email, takes on a life of its own, now imagine since how long you have been using internet and how much part of your life is blindly devoted to internet. Even when you or the originator (if someone else) deletes it, the chances are that there’s a copy of it somewhere out there in the cloud. In principle, someone still owns it.

Policy as available and Copyright Act.

As it’s well known fact that Facebook and Instagram are widely used social media of this generation. An average person will spend more than five years of their lives on social media, according to a study by influencer marketing agency Mediakix.[iii] Mediakix calculated average time spent per day on YouTube (40 minutes), Facebook (35), Snapchat (25), Instagram (15) and Twitter (one) and projected those figures out over a lifetime, arriving at a total of five years and four months.[iv]

Let’s take a look what our favourite social media site got us agreeing to, a better look at Facebook terms & conditions, which we all tend to overlook in order to chat with someone first or to post some content, herein as follows;

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.[v]

Now let’s see, what are the rights of copyright holder in India:

  • Right of Reproduction: This right authorizes the person having such copyright to make copies of the protected work in any form.[vi]
  • Right to Distribute: The person who owns the copyright owner may distribute his work in any manner he deems fit. The owner is also entitled to transfer the whole or some rights in favor of any other person while retaining others.[vii]
  • Right to make Derivative Works: The copyright has the right to use his work in various ways, for instance making adaptations or translations.[viii]
  • Right of Paternity: The Right of Paternity or Attribution gives the copyright owner a right to claim authorship of the work.[ix]

As the copyright owner, you have certain rights under the law to stop others from copying or distributing your work, or creating new works based on your work. Copyright infringement generally occurs when a person engages in one of these activities without the copyright owner’s permission.[x]

What this basically means is, the copyright holder has an exclusive right over the distribution of his copyrighted material and that if in any case someone infringes such a right he/she shall be held liable for infringement of such copyrighted material. Herein above the content that you are uploading on Facebook even if a copyrighted material but with an exception, you are giving facebook “non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License)”[xi]. Meaning thereby facebook has the permission and rights to use your copyrighted material in any manner and you can’t do a thing about it, because you have already agreed to it’s terms & conditions. That’s not just it, the story doesn’t end here, the material whatever you have posted online once even if you delete it after only a minute, it’ll always be available on Facebook on it’s own recycle bin, which they of course don’t show as of now.

“The essence of the Facebook service is to facilitate on your behalf the sharing of the content you choose to share, subject to the control it allows you over where and to whom it is shared. That licence agreement is what Facebook deems necessary to enable it to provide that service. And it is an agreement: if you’re using the service, you’ve agreed to it, even if you haven’t read it. That’s how contractual obligation works.”[xii]

When it comes to possible infringement of IPR  in post made by users of Facebook, the onus is clearly on them and not on Facebook.

“Anyone who uses Facebook owns and controls the content and information they post, as stated in our terms. They control how that content and information is shared. That is our policy, and it always has been.”[xiii]

Let’s have a look on the terms & conditions framed by Instagram;

Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service.[xiv]

Herein as well Instagram even though not owing the content that we are posting on their application or via their service, but they still have or if I may say, I grant Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that I post on or through the Service. According to them we cannot violate copyright laws and we shall not post any such content. But in reality these services themselves violates the very basic rights of copyright holder, of distribution, sub-licensable rights. That in plain words signifies that even if they are the one who violates your rights as a copyright holder, you actually cannot sue them for such a violation.

Strictly speaking, when users upload an image to Instagram, they do not forfeit their copyright. Instead, Instagram’s Terms of Use operate so as to give the social media platform a non-exclusive, fully paid and royalty-free transferable, sub-licence to use the content. This means that Instagram can license images from the site to others including other Instagram users who can ‘Regram’ images (repost photos) from accounts that they follow without infringing copyright.[xv]

 Similarly, Instagram’s Terms of Use enable the company to select images that users have posted on the site and sell them to a third party marketing company, even if at a later stage issue arises the person whose picture was posted will go after the marketing company and marketing company is going to go after Instagram but nothing can come out of it, as the usear have already provided non-exclusive, fully paid, royalty free transferable rights to Instagram, ‘seems like a close ended loop’. However, the company would engage in such behaviour as it would alienate users.[xvi]

When someone uploads a photograph to Instagram, they retain the copyright to the image. Instagram, however, does gain a non-exclusive, fully paid and royalty-free transferable, sub-licence to use the content uploaded to its platform, but are unlikely to license a posters’ image for profit as doing so would put users offside. This means that Instagram can use the content as it chooses and can also licence the content to third parties.

Recent Policy changes

With Instagram and Facebook one thing is guaranteed, that what terms and conditions you read today you might not find those same when you log in the next time. It’s not the first time that Facebook and Instagram have changed their terms & conditions overnight, even in their policy another thing is mentioned that, they can make changes in their terms & conditions or policies anytime they deem fit, they will just notify users once about changing their terms & conditions which you have to accept, and users do so without even reading what it’s written in their service contract, basically it’s a service which users must read but tend to ignore in order to reach their home page as fast as possible.

Facebook and Instagram both recently have launched a great feature of ‘Live’ wherein you can go ‘live’, as in ‘on air’ from wherever in the world you are sitting whatever you might be doing. It does sounds a good feature probably people might be even getting ideas when to go ‘Live’ during reading this as well, but this great tool of Instagram and Facebook might pose a great threat to IPR holders.

Unlike other media sharing sites like YouTube and SoundCloud, Facebook did not seem to have a mechanism for detecting copyrighted material inside of a streaming video, because of the ‘liveliness’ of the live video.[xvii]

Take for instance Person A is sitting in a stadium watching a cricket match Virat Kohli playing his 200 International Match, now this person A has started ‘Live streaming’ to post the content on his wall, that he’s live watching cricket match, that means for free of cost he’s broadcasting that cricket match because of that great feature, and the companies like Star sports, Ten Sports they are paying God knows how much money to broadcast this match on their channel so that people will watch it on their channel. Even if the feature is great in it’s every aspect but it’s causing infringement of copyright holders. With the rapid technological progress and popularity of this ‘Live’ feature of Facebook, the developers are clearly having issues with the protection of intellectual property online, especially when it comes to broadcasting live sports events or an artistic produc[xviii]tion like a concert or movie.[xix]

In a recent verdict, (The Football Association Premier League vs. John Doe), the Supreme Court of Israel held that the owner of a site which offers the viewing of sporting events through ‘streaming’ technology has infringed copyright laws (i.e. Facebook & Instagram in our case). The main question that came in front of the court was, whether ‘streaming’ technology contains a transmission of information, as per the requirements of the general copyright law. The answer which came forth was a bit complex, because the transmission of information was defined as information leaving location A and arriving at location B. In case of live streaming, apparently there is no transfer of information. Consequently, the court ruled that streaming is actually much more similar to the basic infringement of ‘broadcasting’ allowing the viewers to view a production without having a copy of the production stay in the possession of the viewers at the end; this is quite different from illegal copying or downloading of infringing material.[xx]

Conclusion

Facebook recently introduced a new feature called Rights Manager, basically it aims at protecting the rights of person holding their copyright, although it says to keep a check on ‘live streaming’ as well, but let’s wait till some other new feature comes up. Rights Manager is for publishers that publish content on Facebook, and also those that don’t publish on Facebook, but want to protect their content.[xxi]

All things considered, to handle the copyright issue Facebook has as of late actualized ‘Image and audio matching’ frameworks that assistance hail copies of existing substance. Be that as it may, this upgrade brings up an intriguing issue, as an artist now you need to transfer your unique artistic work and everything on Facebook first, since the tech requires a current substance to coordinate and check a copy keeping in mind the end goal to report encroachment and ensuing takedown. This can be an understood compulsion on the artist and app makers to work together or share everything of their manifestations just to get copyright assurance. The problem still remains, and with the appearance of new specialists in video gushing, securing licensed creative rights online will without a doubt be a critical issue in coming days.

Still the researcher firm belief is that, the old ways are still best in order to protect your copyright from being infringed. “Don’t upload everything online” after all our safety is in our hands only.

With it’s the researcher concludes this research, that the content we post on Instagram and Facebook although being a copyrighted content we share our rights with Facebook & Instagram, even though the policy, terms & conditions are ambiguous.

So either don’t upload your content or deal with the

[i] Facebook Rights Manager, Introduction https://rightsmanager.fb.com/ (November 3, 2017)

[ii] Jean Murray, The Balance on Copyright and Social Media Issues (July 07, 2016), https://www.thebalance.com/copyrights-and-social-media-issues-397821

[iii] David Cohen, Adweek on How Much Time Will the Average Person Spend on Social Media During Their Life? (Infographic), (March 22, 2017), http://www.adweek.com/digital/mediakix-time-spent-social-media-infographic/

[iv] David Cohen, Adweek on How Much Time Will the Average Person Spend on Social Media During Their Life? (Infographic), (March 22, 2017), http://www.adweek.com/digital/mediakix-time-spent-social-media-infographic/

 

[v] Facebook, Statement of Rights and Responsibilities, (November 3, 2017) https://www.facebook.com/legal/terms

[vi] Sudhi Ranjan Bagri, iPleader on what are the rights of copyright owner, (April 11, 2016) https://blog.ipleaders.in/rights-copyright-owner/

[vii] Sudhi Ranjan Bagri, iPleader on what are the rights of copyright owner, (April 11, 2016) https://blog.ipleaders.in/rights-copyright-owner/

[viii] Sudhi Ranjan Bagri, iPleader on what are the rights of copyright owner, (April 11, 2016) https://blog.ipleaders.in/rights-copyright-owner/

[ix] Sudhi Ranjan Bagri, iPleader on what are the rights of copyright owner, (April 11, 2016) https://blog.ipleaders.in/rights-copyright-owner/

[x] Facebook, Copyright on what rights do I have as a copyright owner, (November 3, 2017), https://www.facebook.com/help/1020633957973118/?helpref=hc_fnav

[xi] Supra., at p. 4

[xii] David Harley, Copyright and Social Media, (December 8, 2015), 02:46 PM, https://www.welivesecurity.com/2015/12/08/copyright-social-media/

[xiii] David Harley, Copyright and Social Media, (December 8, 2015), 02:46 PM, https://www.welivesecurity.com/2015/12/08/copyright-social-media/

[xiv] Instagram, Instagram help center on Terms of use (January 19, 2013), https://help.instagram.com/478745558852511

[xv] Legalvision, Who owns the Copyright in an Instagram Image, (April 6, 2017), https://legalvision.com.au/who-owns-the-copyright-in-an-instagram-image/

[xvi] Legalvision, Who owns the Copyright in an Instagram Image, (April 6, 2017), https://legalvision.com.au/who-owns-the-copyright-in-an-instagram-image/

[xvii] Shyikh Mahdi, Daily Observer on Facebook Live: The new Frontier of Copyright Protection, (October 26, 2016),  https://futrlaw.org/facebook-live-new-frontier-copyright-protection/

[xviii]

[xix] Shyikh Mahdi, Daily Observer on Facebook Live: The new Frontier of Copyright Protection, (October 26, 2016),  https://futrlaw.org/facebook-live-new-frontier-copyright-protection/

[xx] Shyikh Mahdi, Daily Observer on Facebook Live: The new Frontier of Copyright Protection, (October 26, 2016),  https://futrlaw.org/facebook-live-new-frontier-copyright-protection/

[xxi] Ibid., pp1

Image source: Photo by Merakist on Unsplash. Available at:  https://unsplash.com/photos/CNbRsQj8mHQ