Meghana Chandorkar, Partner; Urjitah Srikanth, Senior Associate, TMT Law Practice

Introduction

The most popular way of finding a new song, or discovering a show or movie, is by hearing it or about it, relentlessly, on Instagram ‘Reels’, or other social media platforms and short form video applications. In fact, if a song is ‘trending’ on such platforms, it is likely to be streamed on audio streaming platforms, multiple times, by millions of users, or even heard on the radio, enabling it to be a sure shot ‘hit’[1]. However, the flipside of the song becoming so popular, for the owners of songs, is that all such uses may not have been done with the owner’s permission. In fact, most uses of songs and other content (audio, visual, and audio-visual) on the internet, have likely been done without appropriate permissions.

Many users creating content for use on the internet, whether in the form of images as memes, videos of performances hopping on to the latest dance trend, end up using songs and other content owned by someone else, under the incorrect assumption that small or insignificant uses of third-party content on the internet will not amount to infringement or that they fall under “fair-use”. In fact, many users also incorrectly believe that providing appropriate credit or adding a ‘disclaimer’ would be sufficient to avoid receiving any copyright infringement claims from the owners of the ‘used content’. Another common misconception is that use of the ‘used content’, without permissions, as long as it doesn’t generate any revenues, is permissible. These wrong assumptions, and perhaps a lack of awareness of the rights being utilized or that such utilization requires authorization from the owner of the content, has led to the creation of the monster that is ‘user generated content’.

It can, however, be a friendly monster, and can work in the favour of both - the owner of the content, and the creators/users of the content. The creators and users of the user generated content – social media influencers and content creators, have made lucrative careers out of their presence on the internet and have amassed a huge number of ‘followers’. Whereas, for owners of the content, the favourable by-products of the use of their content by such users to create the user generated content, are large scale promotion and visibility of their content, to millions, on the eternal endless internet. That being said, unless the term of copyright has expired, or the use is deemed to be ‘fair use’ under the applicable laws, the content owner’s rights, such as copyright and other neighbouring rights, like moral rights and performer’s rights, in both – the existing audio and audio-visual content (“Third-Party Content”) are being utilized, without the owner’s authorization, by the creators/users in the creation of the content that they ultimately create using such Third-Party Content (“User Generated Content”).

As seen above, User Generated Content is currently a fairly confused jumble of good and bad, for users/creators of User Generated Content (“Creators”) and owners of Third-Party Content (“Owners”) alike. There are pros and cons to User Generated Content, and it is the cons that must be ‘caged’, and the pros are the reason they have to be ‘befriended’.

Caging the Monster

Beginning with the cons of User Generated Content, probably the biggest and foremost negative aspect is the uncontrolled and unauthorised usage of the Third-Party Content, because of which an Owner stands to lose significantly. There could be considerable loss of revenues, whether from the lack of license fees or royalties, or from consumer preference of User Generated Content over Third-Party Content. There is also a high risk of content piracy from unchecked use and availability of Third-Party Content as a part of User Generated Content. Further, unauthorised use of Third-Party Content by a Creator could be in a manner that is not appreciated by the Owner, or in a manner that the Owner could consider to be damaging to their reputation or goodwill and/or as distortion or mutilation of their content. An Owner is left with having to make a choice between having their content become wildly popular by means of its unauthorised use by Creators at the risk of losing out on their economic benefits, or effectively, stifling its success by taking an adversarial position against unauthorised User Generated Content.  While the biggest and foremost negative aspect likely affects only Owners, it will be in the best interest, and for the most part, under the control of the Creators to not let such cons get in the way of their creativity. Let’s look at how, a little closely.

Beginning with the basics, the Copyright Act, 1957, the law governing copyright in India, bestows certain exclusive rights to the owners/controllers and authors/creators of content – films and shows, songs, music, lyrics, photographs or stills from films and shows, dialogues, etc. There are also certain rights available to the actors, singers, and other visual and vocal performers, in their performances, as rendered for the audio/audio-visual content. These rights, for the purposes of understanding the rights used or exercised by a Creator in User Generated Content, can be broadly classified as under:

• Reproduction – taking a piece of content, and ‘reproducing’ it, as it is or with modifications, on identical or other mediums, or in the same or other formats. Reproduction is ‘copy and pasting’ of sorts. For e.g., taking a still from a movie and uploading it on the user’s social media account, with an unrelated caption, pasting other images, emojis, etc. over it, would amount to reproduction.
• Performance/communication to the public – any display or playing of Third-Party Content, as a part of User Generated Content (or otherwise), where it can be generally viewed by the public, is known as ‘performance’ of the Third-Party Content. Therefore, for example, where a Creator ‘acts’ out a popular movie scene in their User Generated Content, it will amount to performance of the dialogues acted out, or where a Creator dances to a song in their User Generated Content, it will amount to performance of the song.
• Adaptation – adaptation is where one type of Third-Party Content is ‘adapted’ into another. For e.g., where a Creator creates a remix of a song, or creates a mash-up of two or more songs, the Creator has created an adaptation of the original song(s).

It is important to remember that there are several other rights that are available to a copyright owner/controller, and/or author of a copyrighted content, and in most User Generated Content, more than one right necessarily gets used or exercised. For example, a right in the copyright family known as ‘personality rights’ gets exploited by a Creator who is miming an actor. In fact, a choreographer of a dance routine has certain rights in the routine that get exploited by Creators performing the routine.

In most cases, it is not possible to neatly classify the use of a Third-Party Content as having exercised any one particular right, and it is usually a combination of two or more rights that get exploited. What is more important to remember that if these rights in a Third-Party Content are used or exercised by a Creator in their User Generated Content, without appropriate permissions, then the rights of the Owner of the Third-Party Content are, necessarily, infringed. The owners, authors, artists, creators, etc. of the Third-Party Content, having spent considerable time and effort in its creation, would, naturally, like to reap its benefits. Such benefits are what is known as copyright - the intangible right to decide how the works gets used, and how to earn from it.

As elaborated by our colleagues in another article earlier this year[2],  the principle of de minimis (i.e., a legal principle which allows for matters that are small scale or of insufficient importance to be exempted from a rule or requirement) does not find statutory backing in India. It is left to the Courts to determine, on a case-by-case basis, whether a use of copyrighted content is small enough to not be considered as infringement. Therefore, it must be borne in mind that all unauthorised uses of copyrighted content, in any form or manner, in any quantity, or to any extent, will be infringement. This throws the question of ‘small’ or ‘insignificant’ or ‘harmless’ uses of Third-Party Content out the window, as there exists no such possibility.

In this digital era, especially with the advent of the pandemic, when life, as we know it, became almost entirely virtual, User Generated Content has taken a fairly uncontrollable and unchecked form. Many social media platforms and short-form video applications, such as Josh, Moj, ShareChat, MX Takatak, etc., in addition to the most popular, YouTube, Instagram, and Facebook, offer people many ways to create, upload, and consume Third-Party Content and User Generated Content. These platforms, though they partake in the performance of the Third-Party Content (as a part of User Generated Content or otherwise) by literally providing a platform for communication of the User Generated Content, have legitimate shelter under the statutory protection granted to ‘intermediaries’ under the Information Technology Act, 2000 (as amended from time to time).

For the unacquainted, an intermediary is a platform that merely receives, stores, or transmits any content on behalf of another. The Indian legal framework provides that an intermediary shall not be liable for any content made available or hosted by it, provided that the function of such intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted, and provided further that an intermediary does not: (a) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission.

More recently, though, popular audio clips and songs/song clips are made available by the platform itself, under a ‘library’ feature of the application, for use by the users of the platform in their User Generated Content. Such making available of audio clips to users of the platform, by the platform, if done without appropriate licenses, will disentitle them from seeking the statutory protection available to intermediaries, as it goes against the conditions mentioned above.

The Indian statutory and judicial landscape impose certain due diligence obligations on an intermediary, with respect to the content it hosts. An intermediary has the right, and in certain instances, an obligation, to ensure content on its platform does not infringe any rights of any third-parties. In particular, when an intermediary has received notification of infringement of rights in the content on its platform, it must take necessary action to take it down and prevent such infringement. Practically speaking, however, it is not manually possible or feasible for an Owner of the Third-Party Content to comb these platforms, extract details of infringing content, and notify the platform of the same, mainly because these platforms boast of millions of daily active users[3].

Needless to say, the task of caging the monster appears to be a tedious task. As putting a complete end to User Generated Content, or even controlling it on a largescale level, may not be possible, the question that remains is if some kind of a work around is possible, even if only for the obvious reason of preserving the freedom of speech and expression of the Creators of User Generated Content. It would definitely be easier for Creators of User Generated Content, if they do not have to fear and/or respond to copyright infringement claims, and for Owners of Third-Party Content to not have their content be unfairly used without permissions.

There are a few ways in which Third-Party Content may be used by Creators in order co-exist without disputes, and/or infringing rights of any person or entities, while also protecting freedom of speech and expression, for the most part, as indicated below:

• By using content available in the licensed content library of social media platforms only. As tempting or convenient as it may be to use (or reproduce) a song directly, the same may get picked up in fingerprinting (explained below), and be subject to unpleasant claims or blocks.
• There are certain uses which are statutorily deemed to not be infringement. The Indian copyright law provides a detailed list[4] of uses of Third-Party Content, such as criticism, review, reporting, use in the course of education, etc., which are considered as ‘fair-use’ and are exempted from the exclusive rights available to the owner of copyright, and thus, will not be deemed to be infringement. Creators of User Generated Content must stay within the bounds of these exceptions to avoid infringement claims.
• Approaching the Owners for permissions to legitimately use such Third-Party Content to create the User Generated Content.

Befriending the Monster

Recognising that User Generated Content, with its many pros, is here to stay, will be the first step to dealing with it in an effective manner. As already mentioned above, there is a new category of professionals in this digital day and age – the influencers, bloggers/vloggers, and content creators, and they have become important tools to having countless entertainment content, brands/products/services, advertisements, information, news, etc. reach a consumer in the palm of their hands. What Owners are also coming to realise is that Creators are instrumental in the increase in popularity of their content without spending what otherwise would have been a hefty marketing budget to undertake traditional ways of promoting their content, with lesser reach.

Platforms like YouTube and Meta (for Facebook and Instagram) have led the way in this endeavour of befriending the monster. Presently, they have obtained blanket licenses from owners of music content for use of music on their platforms, perhaps pre-empting that they could be subject to copyright infringement claims and notices, due the acts of the Creators on their platforms. Such licenses typically allow the platform to offer songs from their licensed music catalogue, as a part of the aforementioned ‘library’ feature, and in a sense, legitimise the use by the Creators of the Third-Party Content in the User Generated Content, on the licensee platforms. Some platforms are also actively working with Owners of the Third-Party Content, to develop efficient technologies, specifically, ‘finger-printing’ technologies[5]. Without going into the technical details, this technology identifies Third-Party Content (both audio and audio-visual), that has been used in User Generated Content. It then deals with the unauthorised usage of the Third-Party Content automatically, whether by way of placing automatic claims and redirecting revenue (if any) to the original owner, blocking, muting, etc., but all of this, while giving sufficient opportunity to the users to respond to the claims.

Further, the last few years have shown us that Owners and Creators can, in fact, co-exist. The most heart-warming story is of a young singer, all the way across the globe in the U.S.A., creating and uploading a cover version of a popular song on the internet, the cover version becoming popular on social media and finding its way to the producer, and the producers loving the version so much that they collaborated with the singer to create an official acoustic version of the song, which is also extremely popular. The singer, needless to say, is now hugely successful[6]. The cover version, though an infringement when first uploaded, opened up beneficial avenues, to both the parties. Similarly, a content creator and singer based in Mumbai, who regularly creates and uploads different versions of popular Indian and international songs on her social media accounts was also discovered based on a Hindi version of an English song that she created. What is notable about this instance is that the English song, which wasn’t so popular when released in the early 2000s was ‘trending’ on the User Generated Content circles, and as a consequence, on streaming platforms. The Creator’s song was also highly appreciated on social media, ultimately reaching the original singer, who sincerely appreciated it[7].

Conclusion

Copyright is a personal right, in that, if Third-Party Content is used in User Generated Content, the same is infringement de facto, but that infringement becomes an issue, if the Owner of the Third-Party Content decides to treat it as an issue.  An Owner of Third-Party Content, legally has, and should have, the right to decide how their content is used. As we have seen, a few instances of use of User Generated Content have led to tremendous success and recognition for some Creators, as in these instances, the Owners chose to appreciate the User Generated Content. However, the possibility than an Owner may not appreciate the User Generated Content and may instead choose to assert their rights always exists. It is evident that the law needs to adapt to recognise the boom in the development of User Generated Content and make provisions to address this, while ensuring that Owners don't lose out on the economic benefits of be.

Authored by:

Urjitah Srikanth, Senior Associate - https://tmtlaw.co.in/lawyers/urjitah-srikanth/

Urjitah is a Senior Associate at TMT Law Practice. She graduated in 2018, and enrolled with the Bar Council of Maharashtra and Goa. Since her graduation, she has worked with boutique IP law firms, servicing media and trademark (prosecution) clients, and has also worked in-house for a music label and publisher.

She has had the opportunity to work with production houses, talent managers, OTT and audio streaming platforms, artists - actors, singers, performers, songwriters (authors and composers), writers, etc., and music labels and publishers. Her expertise lies in deal structuring and contract drafting and negotiating, specifically pertaining to the media industry, having dealt with transactions involving content creation and exploitation across various modes, media, and formats, brand deals for content creation and distribution, endorsements, services agreements, and marketing agreements. Urjitah caters to the requirements of clients in the media and entertainment sector, by providing advisory and consultancy services in all aspects of clients’ businesses, with a keen focus on intellectual property (copyright and trademarks).

She is an experienced trademarks lawyer, and has provided services for trademark registrations and oppositions, including attending hearings at the trademarks registry. Additionally, she has also conducted due diligences – on labour law compliances by a company having offices in various cities in different states of India, and for rights checks for content acquisitions.

Urjitah is a skilful researcher and an academic at heart. She is comfortable with exploring any area of law to meet the requirements of a particular matter / transaction.

Email: [email protected]

[1] https://www.hindustantimes.com/entertainment/music/surreal-for-chaand-baaliyan-to-go-viral-after-two-years-of-release-aditya-a-101646393968095.html

[2] https://tmtlaw.co.in/doctrine-of-de-minimis-vis-a-vis-copyright-infringement/

[3] https://indianexpress.com/article/technology/social/josh-the-short-video-app-born-after-indias-tiktok-ban-gets-805-million-7854930/

[4] Section 52 – Copyright Act, 1957

[5] ‘Fingerprinting’ is identifying a piece of content by its unique characteristics. It is typically accompanied by an unique alpha-numeric ID given to a piece of content, by the platform on which the content is uploaded. The ‘fingerprint’ of the content is then used to track similar or substantially similar content on the platform, and tackle infringement, by placing claims / blocks / strikes, etc. Google first developed this technology, known as ‘Content ID’ for YouTube, which is now adopted or developed by other platforms. There are also service providers such as ‘Audible Magic’ that provide content infringement tracking via fingerprinting as a service to other platforms. It is pertinent to note that each platform has different terms and conditions for upload of content and use of fingerprinting technology.

Further reading: https://support.google.com/youtube/answer/2797370?hl=en; https://www.audiblemagic.com/technology/.

[6] https://rollingstoneindia.com/the-extraordinary-rise-of-lisa-mishra/

[7] https://www.hindustantimes.com/lifestyle/brunch/social-media-star-of-the-week-vipasha-malhotra-101628999842346.html