IPR on Social Media Platforms, Influencers, and Content Creators
INTRODUCTION
Over the years, the Internet has become a vital part of our daily lives. It is a platform that delivers digital content like music, movies, images, software, books news, etc. to any part of the world, almost instantaneously due to its global reach. With the rise of the internet, we entered an era of rapid digitalization which brought forth the rise of social media platforms or applications.
In the present scenario, social media platforms have really taken over the world. We, as a society, have become more dependent on these platforms over time, but they are accompanied by their own set of pros and cons. These platforms have drastically transformed the way we communicate. We have been provided with the means to constantly stay in touch with our social media connections by these platforms, we can receive and publish updates instantly, and they create easy access to all sorts of information for their users.
Intellectual Property law is not a panacea for the problems of creativity and innovation. It does not provide for any legal protection for technological measures. The problem is that when a work is created, it is not possible to determine whether it was created by an author or an inventor. The only way to determine this is to rely on evidence such as registration of patent, copyright, and trademark.
It's important to note that social media content is not always free to use and share with others. The same way you would expect a stranger to not take your picture without asking, you should be aware that the same rules apply to what you post on social media. Even though certain basic guidelines are provided by social media platforms, most users still go through a hard time trying to navigate what content is and is not appropriate to share.
The current situation is that the protection of intellectual property rights in electronic form is very limited. The main reason for this is that the laws and regulations on intellectual property rights are not yet fully developed. It has created a paradoxical situation.
As this is a global issue which is common to all, India faces the same hardships as any other nation or maybe even more so. If India provides stronger legal protection for technological protection measures with limited fair use exceptions, it will end up in depleting public domain and harming public interest principle of copyright. If it does not provide for legal protection for technological measures, the Internet may create havoc in enforcement of Intellectual Property Laws.
Social media has also brought about a drastic change in the manner we conduct business nowadays. Small businesses, startups, and even well-established businesses can grow at a faster pace with the help of several marketing opportunities provided by social media applications or tools such as Instagram, Facebook, Twitter, Pinterest, and many other upcoming platforms. Social media serves as a means of instant, mass publication and facilitates immediate and easy communication between companies and their clients or customers. ?
It's true that social media has bestowed many benefits upon us, but it has also opened doors to more threats to one’s intellectual property. There is a higher risk of infringement of intellectual property rights such as trademarks, copyrights, trade secrets, etc. now, more than ever. Protecting your intellectual property has become simple these days but the present scenario of digitalization has made it quite tricky.
Even though social media platforms promote and revolve around sharing of content, not all content is always free to use the content contains a lot of intellectual property. All these platforms do provide certain terms and conditions and remove content accordingly in case of any breach, but these guidelines or rules don’t make it much easier for users to navigate what is appropriate and what is not.
Business owners, social media influencers, and content creators must be extra cautious of either accidentally infringing someone’s intellectual property or protecting their intellectual property from infringement.
Most users are also at high risk of infringing the intellectual properties of others without any intention to do the same. This problem is caused due to lack of knowledge or awareness with regard to intellectual property laws. Users must be aware of what they post or publish to avoid infringement issues. They must not post copied content, try to use public domain images, or should make sure to gain a license from the owner before using the same.
Social media has not only had implications on our social life but has also adversely affected the legal system. Its rapid growth has posed many challenges for the Courts as the existing laws were crafted without keeping social media and its implications in mind.
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I.???????Intellectual Property and Social Sharing ??????
What is meant by Intellectual Property?
Intellectual Property, according to the World Intellectual Property Organization (WIPO), “refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce.” [1] This means that anything created by a person, whether tangible or intangible, would be under the ownership of its creator along with the control rights regarding the usage of that product.
In an era where social media is so prominent, the concept of intellectual property and its application tends to get a little blurry.
Oversharing: The New Normal
In present times, having an online presence has become an integral part of life. “Content sharing” and “collaborating” on social media platforms is very common these days as it plays a vital role in gaining an audience or followers. These acts help business organizations, content creators and influencers expand their market or followers as well as facilitate smooth interaction with their “community”. As social sharing has become a part of everyday life, it has made a clear pathway for intellectual property theft.
Social media platforms have created a digital cultural norm of “sharing” or “oversharing”. Since, endless content ranging from images to ideas can be shared over these platforms, one can easily capture another’s idea and make it their own. Thus, the question arises ‘how free is free, in this era of massive digital freedom?’
Such easy access to content or information blurs the line between ownership, duplication, and distribution of original content. Contrary to common belief, content or images on social media are not always free to use, thus, if a person takes the same from another person’s feed and uses it as their own, it amounts to copyright infringement or abuse.
Social media platforms such as Twitter, Facebook, Instagram, etc. provide its users with a set of specific rules or guidelines which every user must abide by. Every user must agree to these ‘terms and conditions’ in order to create an account on any of these platforms. When one signs up for these apps, they license their content or material to these platforms. A license grants one person permission to use another person’s content in a particular manner for a specific purpose.?Since, an agreement is made between the platform and the creator, it amounts to a binding contract where the original creator still holds the rights to the intellectual property. Hence, the content on social media is not necessarily free to use.
Since, a binding contract is entered into, it is important to understand the terms and conditions applicable to the host platform and the user.
II.????Social Media Platforms: Terms & Conditions and Licensing
Even though all users agree to the terms and conditions provided by these platforms, most users overlook the same. These terms determine the legal relationship between the platform and its users. It is especially necessary for content creators, influencers or business organizations who use these platforms as a means to advertise and promote their work to understand what they are agreeing to or signing up to.
The terms and conditions govern what content is appropriate and how it may be used by the platform and others. If one is using social media platforms to promote their work, the app may require them to do the same in a specific area or under a different type of account (a business account in place of a general user account). The standard terms also discern content containing nudity and extremely graphic images or videos or displays of violence.
It has already been established that the ownership or copyright of creative content on these platforms belongs to the original creator unless there is an agreement that states otherwise. When the content is created in the course of employment, the employer owns the rights to the work or the content. A copyright owner retains exclusive rights to reproduce, communicate, distribute, copy, and license his or her creations as they deem fit.
Once a user posts something on their socials, they effectively grant a license to these platforms to use their work in compliance with the given terms and conditions. This license is legally binding in nature. Some key terms which every user, especially content creators and influencers must pay attention to for the purpose of understanding what rights they retain and what rights they may be signing away are:
“Non-Exclusive”: This signifies that one is free to post or upload or license their work to third parties including websites. An exclusive license is highly restrictive as it restricts all parties including the creator from using the work or content.
“Royalty-Free”: This signifies that the service provider has no obligation or duty to pay the creator for the use of their work, even if the same has been used for a commercial purpose. Since, the license is non-exclusive, the creator is free to license the same to other parties and get paid for it. ?
“Sub-Licensable”: This signifies that the owner of creative content or the licensing party can grant permission or rights to other parties for the use of that content. This term is essential for social media platforms as otherwise, users would not be able to share one’s content with other users or repost the same.
“Modification”: This right is requested by social media platforms in order to adjust or modify the size or other display properties of an image or video. However, this could also comprise of other modifications not approved by the user.
“Incorporation into other Works”: This signifies that one user’s content can be used by the app as part of other copyright content or works. The user or owner would still retain the copyright in their content but a separate copyright for the new work can also exist.
“Perpetual”: This signifies that a license may continue indefinitely unless it is terminated or if provisions have been made for its termination.
“Irrevocable”: This signifies that a user can not technically terminate the license. However, there is provision of other terms which may decide if a license is non-terminable in any or all situations. For example - Specified Termination Condition Users must pay attention to the purpose for which the license has been granted. It is important to note whether the purpose is specified as commercial or solely for the purpose of promotion of the app or platform or the purpose may not be specified at all.
Geographical Scope of Social Media Licensing
Majority social media licenses are termed as “worldwide” and their use is not bound by geographical factors. On top of that, the license may be governed by a legal jurisdiction other than one’s home jurisdiction and may provide for different treatment of the content. In case of any disagreements over one’s content, they would most likely be required to pursue the same through the country governing the license. Most social media licenses ?come under the jurisdiction of the United States law.?
Indemnities - What is legally binding on whom?
Once, a user signs up to the terms and conditions given by a social media platform, they become responsible for any claims brought down against them regarding their content. This is referred to as ‘indemnity’. ?Some platforms may have broader provisions of indemnity which hold the user liable for legal costs of all claims made against the platform, even if no copyright infringement is proved.
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Infringement of Intellectual Property
While creating an account on social media platforms, users agree to upload content over which they have a right. If one uploads or posts the work of another on their socials as their own or without the original owner’s permission, it amounts to infringement. Such issues can be pursued via the platform’s copyright complaints procedure.
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Changes in the Terms
All social media platforms tend to bring changes to their terms and conditions from time to time. Ideally, the apps should intimate the user of such changes but certain terms state that the owner of the platform may change the terms and conditions “at any time” and “without notice” to the user. Rationally, it cannot be expected of users to agree to new terms which they are not even aware of. ?
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Terms of Use Provided by Various Platforms
“... a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). This means, for example, that if you share a photo on Facebook, you give us permission to store, copy, and share it with others (again, consistent with your settings) such as service providers that support our service or other Facebook Products you use. This license will end when your content is deleted from our systems.”[2]
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“… a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). You can end this license anytime by deleting your content or account. However, content will continue to appear if you shared it with others and they have not deleted it.”[3]
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“… 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). This license authorizes us to make your Content available to the rest of the world and to let others do the same. You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, Retweet, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use …”[4]
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YOUTUBE
“… By providing Content to the Service, you grant to YouTube a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use that Content (including to reproduce, distribute, prepare derivative works, display and perform it) in connection with the Service and YouTube’s (and its successors' and Affiliates') business, including for the purpose of promoting and redistributing part or all of the Service …”[5]
What One Must Avoid on their Socials?
·??????It is a well-known fact that users cannot illegally download music over the internet, the same rules apply to social media. Users must be very cautious while using third party music on their socials as most likely they have no right to use the same. In spite of how convenient these platforms make it; use of unlicensed music can land you in trouble. Users must either check if the platform’s agreement with the artist allows its use or they can always choose from a variety of royalty free music provided by the platform.
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·??????Influencers and content creators often get remunerated or paid for promotion of content for others on social media. In such situations, they are required by serious advertising laws and standards to disclose the underlying dollar to their viewers or followers. Influencers must inform the public that they are being compensated for such promotion and not just pretend to love whatever they are selling. (Even if they do love the same)
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·??????Users must not use another person’s brand name as a hashtag to broaden the outreach of their content or posts. One must not use another’s trademark for their personal commercial gain, especially if they are in competition with each other.
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·??????Most posts on social media which go viral, start trends across the globe. Majority of these posts feature copyrighted audio clips or music, video clips or other artistic works. Just because these posts went viral and have been widely circulated, one cannot assume that their use is permitted.
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·??????Users must not add brand logos to their posts even if they just wish to show their love and appreciation for the brand. Since logos are protected by trademarks as well as copyright, their unpermitted use is likely to infringe one of the two or both. This also breaches the terms of the social media platforms, which often request users to refrain from infringing third-party Intellectual Property with their online activity.
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III.???IPR for Social Media Influencers and Content Creators?
Social media influencers and content creators are the people who use social media platforms such as YouTube, Facebook, Twitter, Snapchat, TikTok, etc. to endorse or promote products and generate ad revenue or other revenue opportunities. These people hold the power to influence their followers or other users within their online reach by using impactful and effective promotion techniques. However, the increasing interactive and free nature of these platforms has exposed influencers and content creators to certain legal threats and risks involving intellectual property.
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How Influencers and Content Creators can Ensure Compliance with IP Laws
1)????Copyrighted Material
Copyright is a kind of intellectual property which extends protection to original artistic or creative works and other original creations. The copyright owner holds the right to reproduce, copy, distribute, and display or perform their original works.
Influencers and content creators must ensure that they are permitted to use the content or must qualify for copyright exemption under ‘fair use’ or any other ground before using creative works that belong to others. Using creative works of others online can amount to copyright issues, thus influencers must be aware if they require a license to share the material and must do the needful to acquire the same.
There are a limited number of exceptions under Fair use and to qualify for the same, the use must be non-commercial. When it comes to social media influencers and content creators, the line between commercial use and non-commercial use often becomes blurry. ?
Several social media platforms have come up with their tools to check the infringement of IP rights; for instance – YouTube has implemented a ‘Content ID’ system to assist the copyright owners in the identification, management, and protection of their content. Copyright owners, usually limited to the ones with large catalogues of content, can register themselves on YouTube. Whenever content is uploaded to YouTube, the Content ID system scans the new content and checks for matches of copyrighted content already present in the Content ID database.[6]
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2)???Trademarks
A Trademark is another type of intellectual property. It is any distinctive sign or mark or label which is used to identify and distinguish the source of goods and services of a particular individual or organization from those of others.
Posting content which features another person’s brand name, logo, or trademark amounts to a violation of that person’s IP rights. When an influencer makes a direct reference to the products or services of a specific brand, it comes under ‘Branded Content’. It is essential for an influencer or content creator to obtain proper permission from the brand before using their name, logo, trademark, products, or content.
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Since the main purpose of a trademark is to prevent confusion and dilution, influencers must avoid using the trademark in any manner which is likely to create confusion regarding the source of the goods and/or services in the public mind or which is likely to ‘dilute’ the brand name of the company.???
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3)???Domain Name
Domain names are basically easy to remember, user friendly addresses which assist internet users to locate a website. It represents the ‘online identity’ associated with one’s business. All websites have a domain name which serves as an address to access that website. Domain names are usually followed by terms such as .com, .gov, .in, .org, etc. ?
A domain name can also be registered if it fulfills all necessary requirements for registration. The registered proprietor of a domain name holds all legal rights and duties which can be availed by any registered trademark owner. Hence, social media influencers and content creators must conduct thorough checks to ensure that their chosen name has not already been registered or infringes the rights of others.?
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Case - Marico Limited v. Abhijeet Bhansali [7]
In the recent decision of Marico Limited vs. Abhijeet Bhansali, the Bombay High Court deliberated upon the duties and obligations of social media influencers. Marico Limited, which owns the popular brand ‘Parachute’ in the category of coconut oil, had filed a suit against Abhijeet, a video blogger who runs a YouTube channel called “Bearded Chokra.” The blogger had uploaded a video titled, “Is Parachute Coconut Oil 100% Pure?” by criticizing Marico’s product. In the video, he made statements such as “IT’S NOT AS GOOD AS YOU THINK!! I’LL PROVE IT!!!!” and that “It smells similar to a dried or rotten coconut.” Marico argued that the video showed false information and deceived the viewers into thinking that the tests conducted (as shown below) substantiated the blogger’s claim that the Marico’s Parachute oil was of inferior quality. Marico also stated that Abhijeet sought to endorse two other rival products by providing links for buying those products from online stores and that his acts fell under the category of ‘commercial activities’ and not a general review of the product by an ordinary consumer. The Court held that “such individuals only knew too well that they wielded significant influence over their audience, and that their statements have a magnified and profound impact. Followers place a certain degree of trust in social media influencers and accept their statements as facts without much scrutiny.” The Court also stressed upon the fact that a social media influencer cannot make statements with the same freedom available to an ordinary person. It was further observed that the statements were made with recklessness and without caring whether or not they were true or false. The test conducted by the blogger in his video and the articles relied upon did not prove that the statements made were true.
The Court held that “The Defendant cannot, under the garb of educating or bringing the true facts to the public, provide misleading information to disparage the Plaintiff’s product. Any campaign to educate the members of the public by placing before them the true and correct facts may be welcomed. However, such an excuse should not be used to put out misleading information, which disparages, discredits, or belittles someone else’s product or influences the consumers not to buy the said product. Additionally, the unauthorized use of the Plaintiff’s registered trademarks by the Defendant in a manner, which is detrimental to its distinctive character or reputation, cannot be in accordance with the honest practices in industrial or commercial matters.”[8]
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How Influencers and Content Creators can Protect their IP?
It is crucial for social media influencers and content creators to protect their IP as they post unique and original creations which are freely available to millions of internet users. Influencers and content creators have the right to register as well as enforce their intellectual property. They can protect their logos, marks, online aliases, series names and hashtags under trademark law whereas, other works such as photographs, literary works, original videos, sound recordings etc. are protectable under copyright law. Further, use of an influencer’s image or name or likeness by a third-party is protectable under ‘right of publicity’.
The best way influencers and content creators can protect their IP is by registering the same. If they choose to do so, they must register their content under copyright upon its creation along with registration of their name or their channel name under trademark as soon as they start using the same in association with their content.
Social media influencers taking steps to register their names as trademarks is not very uncommon. For Example:
·??????Lele Pons is a famous YouTuber and content creator filed a trademark application under Class 41 for ‘Entertainment Services’ at the United States Patent and Trademark Office.
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·??????Kylie Jenner owns a registered trademark under Class 35 which provides for ‘Advertising Services’ such as brand promotion and endorsements.
In some countries, the law mandates registration of copyright before any monetary damages can be claimed for its infringement. Since, the right to claim damages only arises from the date of registration, precious time goes by, and most likely severe harm has already been caused to the work and its owner.
This happens because usually, majority revenue is generated from a creative work or content when its initially made available to the public. Thus, it is highly advisable that influencers and content creators should opt for registration of their intellectual property.
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Why Influencers and Content Creators Should Consider Registering their IP?
·??????Registration of IP establishes the ownership of the intellectual property. This is very helpful in case of any legal dispute as the owner can enforce the rights gained by them through registration.
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·??????If intellectual property has been registered, social media users view it to be more legit and reliable and thus, are more likely to revisit the same.
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·??????If any user tries to copy or plagiarize original content of another, the registered owner can get the content removed or taken down from the social media platform with ease.
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·??????Registration also discourages individuals and other third parties from attempting to duplicate original content belonging to the registered owner.
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Frequently Asked Questions – FAQs
1.??????Can one register their #Hashtag as a Trademark?
“In determination of hashtags and infringement issues, it has been opined that they merely operate as tolls to facilitate categorization”[9]
Using hashtags to promote a product or service is a very common tool of social media marketing. For a hashtag to be registered as a trademark, their eligibility for the same needs to be evaluated. The sole purpose of a trademark is to distinguish the goods or services of one company from those of others. When promoting a campaign, hashtags enjoy a similar function. They are organized keywords or references which facilitate search of information. Many believe that hashtags should not be trademarked as they are a grouping tool which encourage use by multiple parties. There has also been reference to the right of freedom of speech and abusive litigation.
United States has provided hashtag registration but registration of hashtags as trademarks has neither been approved nor abandoned. This is because hashtags are viewed as descriptive devices instead of trademarks as they merely act as tolls which facilitate categorization. Further, using a registered trademark does not amount to its infringement. United states has provided registration to hashtags such as Coca Cola’s #smilewithcola and Nike’s #makeitcount.
The USPTO considers the following factors for evaluation of hashtags:
·??????What is the overall context of the hashtag?
·??????Where the # symbol has been placed? If it is placed before numbers, it is not eligible.
·??????Identification of goods/services. If screenshots of the page citing certain hashtags can be provided, it is sufficient evidence that their commercial purpose of facilitating distinction has been fulfilled.
The United States, United Kingdom and Canada provide registration to hashtags as per their own requirements.
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2.????Is Creation of Memes an Infringement of Copyrighted Works?
“While this term has a wide connotation and doesn’t have a specific formula to determine what actually constitutes an improper use, and memes are intended for light humor, it may not come under the purview of improper use unless it is blatantly offensive to the right holder.”[10]
Originally, the term ‘meme’ referred to ideas or values passed down from generations but nowadays, this term represents funny or humorous digital content. Typically, a meme consists of either an original image or images involving popular cultural references with humorous captions or text. Original literary, artistic, dramatic, musical works etc. fall under the ambit of Copyright protection and technically, memes can be categorized as artistic works. However, the question arises “when does use of a meme comprise of ‘fair use’ and when does it constitute infringement?”
Section 52(1)(a) of the Indian Copyright Act provides that review, criticism, and personal use fall under the defense of fair use. In the Blackwood & Sons Ltd. V. A.N Parasuraman[11] case, it was held that the defense of fair use can only be obtained if the alleged infringer has no intention to be in competition with the rights of the copyright owner. It was also mentioned that the alleged infringer must not use the work in an improper manner.
There is no specific formula which determines what comprises of improper use and this term can be interpreted in many ways. Since, memes are created for the purpose of light humor or some laughs, it may not fall under the ambit of improper use until and unless the copyright holder finds its use blatantly offensive. ?Memes do not interfere with the commercial gains or rights of the copyright owner regarding the copyrighted work. ?
In several cases, it was held that when a ‘substantial part’ of the copyright protected work has been used without the permission of its owner, only then it would amount to copyright infringement. Hence, when a small portion of the work has been used, it is protected under fair use. Memes only use specific parts or scenes from copyrighted work such as movies, tv series, etc. Moreover, the copyrighted work only assists the creation of the final product which is a result of the meme creator’s skill and labor. However, the meme must be created for the purpose of entertainment and not to compete for commercial interests.
IV.??Fair Use and Copyright Infringement: Indian Perspective
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Fair use or Fair Dealing under the Copyright Act, 1957
In India, the provisions of Section 52 of the Copyright Act, 1957 provide for certain acts, which would not constitute an infringement of copyright namely fair dealing with a literary, dramatic, musical, or artistic work not being a computer program for the purposes of:
·??????Private use, including research.
·??????Criticism or review.
·??????Reporting current events in any print media.
·??????By broadcast or in a cinematographic film or by means of photographs.
·??????Reproduction for the purpose of a judicial proceeding or of a report of a judicial proceeding.
·??????Reproduction or publication of a literary, dramatic, musical or artistic work in any work prepared by the Secretariat of a Legislature or, where the Legislature consists of two Houses, by the Secretariat of either House of the Legislature, exclusively for the use of the members of that Legislature.
·??????The reproduction of any literary, dramatic, or musical work in a certified copy made or supplied in accordance with any law for the time being in force.
·??????The reading or recitation in public of any reasonable extract from a published literary or dramatic work.
·??????The publication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of educational institutions.
·??????The making of sound, if made by or with the license or consent of the owner of the right in the work.[12]
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Doctrine of Fair Use
The term “fair dealing” has not been explicitly defined by the Copyright Act. It is basically a legal doctrine which permits a person to use copyrighted work in a limited manner without seeking express consent from the owner. Fair use is a defense against an accusation of copyright infringement.
Under fair use, the copyrighted work can be used for the purpose of satire, criticism, teaching, news reporting, research, or scholarship without seeking permission of the copyright holder. These are merely a few examples wherein reality, fair use is decided on a case-by-case basis. There is a thin line between ‘fair dealing’ and copyright infringement. India has no standard guidelines for fair dealings, but many courts have interpreted that the portion used must not consist of a ‘substantial part’ of the original work and must not have a significant economic impact on the copyright owner. The doctrine of fair use or fair dealings does pose as a limitation on the exclusive right of the owner of the copyrighted work.
Even though, there is no standard rule, copyright law examines certain elements while deciding whether the use falls in the ambit of fair use:
·??????Nature of the copyrighted work
·??????Purpose and character of the use.
·??????Portion of the copyrighted work used
·??????Impact of the use on the market or its value
In a fair use judgement, one element may weigh more than another or others but all factors must be taken into consideration. No single element can decide whether the use should be exempted under fair use.
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Case - Fairmount Hotels Pvt. Ltd. vs. Bhupender Singh
A 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
In 2015, a conflict arose when 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 the 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.[13]
v?Section 2(c) of the Copyright Act, 1957 extends protection to photographs as artistic works. However, according to Section 25 of the Act, the protection provided to photographs extends to a period of 60years starting from the date of its publication. Copyright registration is not compulsory, but it is highly recommended.
?CONCLUSION
In an era where oversharing is the new normal, it has become integral part of life to have an online presence. The rise of social media platforms has bestowed a set of pros and cons upon the society.
Even though these platforms provide their own set of terms and conditions for the users, they have made content freely accessible to huge masses which puts pressure on IP laws and makes way for Infringement of Intellectual Property.
It is important for users, especially influencers and Content Creators to pay close attention to the terms and conditions levied by these platforms in order to protect their intellectual property and to avoid unintentional Infringement of another person's intellectual property. They must be aware of their licensing rights and limitations. They must also keep up with the changing policies of these platforms. Influencers and Content Creators should opt for ways to protect their content through ways of registration of their trademark, copyright etc.
Social media brought forth the concept of hashtags and memes. Some nations provide for registration of hashtags. Memes usually fall in the ambit of fair use, but the judgement may vary from case to case.
The current situation is that the protection of intellectual property rights in electronic form is very limited. The main reason for this is that the laws and regulations on intellectual property rights are not yet fully developed. It has created a paradoxical situation.
As this is a global issue which is common to all, India faces the same hardships as any other nation or maybe even more so. If India provides stronger legal protection for technological protection measures with limited fair use exceptions, it will end up in depleting public domain and harming public interest principle of copyright. If it does not provide for legal protection for technological measures, the Internet may create havoc in enforcement of Intellectual Property Laws.
[1] https://abounaja.com/blogs/intellectual-property-and-social-media
[2] https://www.facebook.com/terms.php
[3] https://help.instagram.com/581066165581870
[4] https://twitter.com/en/tos
[5] https://www.youtube.com/static?template=terms
[6] https://www.kashishworld.com/blog/social-media-influencers-and-intellectual-property-rights/
[7] Marico Limited vs Abhijeet Bhansali, Bombay High Court, 15 January 2020
[8] https://www.kashishworld.com/blog/social-media-influencers-and-intellectual-property-rights/
[9]https://christuniversity.in/uploads/departmentactivities/Intellectualis%20October%202020_20210408044711.pdf
[10]https://christuniversity.in/uploads/departmentactivities/Intellectualis%20October%202020_20210408044711.pdf
[11] Blackwood & Sons Ltd. v. A.N Parasuraman AIR 1959 Mad. 410
[12] https://blog.ipleaders.in/social-media-copyright/
[13] https://www.mondaq.com/india/copyright/868718/copyright-act-and-photographs-on-social-media