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This article has been written by Ashutosh Singh, from Amity Law School, Amity University Kolkata. The article is an analysis of the copyright infringement issues involving video sharing apps, in particular Triller.

Introduction

Since the time Tik Tok was banned in India, short video apps have been facing pressure from music rights holders over their licensing deals or lack of it. Every day there are new apps being developed and many of these apps are in the habit of infringing music content since their launch and find various pretexts to not honour the rights of the music copyright owners.

The case of T-Series against Roposo is another example. The company President of T-Series claims that the new apps like Roposo are habitual and blatant music content copyright infringers. However, in a landmark copyright infringement case, the European Court of Justice (ECJ) held that YouTube and other intermediaries like it are not liable for copyright infringement unless specific knowledge existed with the intermediary operator about the existence of the protected content illegally on their platform. They are liable if they refrain from at once deleting the infringing content or blocking access to it.

In light of the above cases this article brings forth the copyright infringement cases involving the video sharing apps such as the Triller.

Copyright works

Many of us have seen the symbol © of copyright but what does copyright mean? It is a type of intellectual property that is for the protection of creative works. In layman’s terms, it means the right to copy. Two things essential for copyright are ‘works and rights’. Copyright is described as the rights which a creator has over their literal and artistic works. Literary works would be poems, novels, news articles, reference works, computer programs, databases, films, musical compositions, choreography, drawings, etc. Also, advertisements, maps, architecture, technical drawings, and an exhaustive list of other works are covered by copyright but are not found in the legislation of many countries.

The copyright works can be classified as: 

  • Sound recording: Any type of sound recording like songs, voice and sound effects, etc.
  • Cinematography: Any type of video recording such as films, videos, etc.
  • Literary works: These include textual works such as lyrics of songs, poems, books, computer programs, and databases.
  • Musical works: These include musical compositions.
  • Dramatical works: Scripts, choreography, screenplay, film scenes, etc. are some examples. These are basically things which can be dramatically performed.
  • Artistic Works: Paintings, sculpture, architecture, drawings, photographs are some examples.

So, apart from the owners, if anybody else uses the rights on these works without the permission of the owner then it is called ‘copyright infringement’. At times apart from permission to use the work, royalty is also given to the owner for the use of the work. Also, there can be more than one owner of the Intellectual property here. For example, a song involves lyrics, musical composition and sound recording but its owners are different. The sound recording is owned by a label. Lyrics are owned by its writer and the composer owns the musical composition. These get different copyright protection. Ideas however are not copyrighted.

For example, everybody has heard of the ‘Harry Potter’ movies. In 2004, a movie by the name ‘Abra Ka Dabra’ was released in India, the concept of which, some claim, was based on ‘Harry Potter’. Although the characters and storyline were different, the idea was the same as that of ‘Harry Potter’ and yet ‘Harry Potter’ could not sue the makers of ‘Abra Ka Dabra’ even if they wanted to as ideas are not copyrighted. There is no law for it as it is possible that two people can get the same idea.

These rights can be further divided as follows:

Sound recording and cinematography

Others

To make a copy

To reproduce the work

To sell a copy

To issue copies of the work to the public

To communicate to the public

To perform the work in public

 

To communicate the work to the public

 

To make film or sound recording

 

To make any translation of the work

 

To make any adaptation of the work

Copyright infringement

Social media platforms seem to have engulfed India with more and more brands using this platform for promoting themselves and many users getting attracted to them. The evolution of social media has opened the door for a whole new set of challenges in the IP (intellectual property) area. One of the biggest challenges in this area is the enforcement of IP regulatory laws in the world of cyberspace because it is borderless and hence any infringement both online and offline requires careful examination and monitoring.

It is a trespass of a private domain owned and occupied by an owner of the copyright and is protected by law from such infringement of copyright.

Section 51 of the Copyright Act, 1957 has two clauses Section 51(a) and Section 51(b). Section 51(a) talks about the primary acts of infringement, whereas Section 51(b) is about the secondary acts of infringement.

Copyright is infringed when someone who has not obtained a license from the owner of the copyright or registrar of copyright or has contravened the conditions of the license. It also takes place when the prerequisite right is conferred upon the owner or permits it for a profit of a place that is employed as communication for work to the general public. Other ways by which copyright infringement takes place is when anyone makes a sale or hire, sells or lends for hire, or distributes copies that are copyright infringed in public for the aim of trade or exhibits it publicly by way of trade.

According to Section 52 of The Copyright Act, 1957, the exceptions to the infringement of copyright are: 

  • Personal or Private use also includes research.
  • Criticism or review, whether of that employment or the other work.

The reporting of current events and current affairs, including the reporting of a lecture delivered publicly.

Fair use

US law uses the principle of Fair Use to allow the reuse of copyright-protected material under certain circumstances without obtaining permission from the copyright owner. Fair use, however, is used on a case-to-case basis, but all the countries do not have the same set of rules about when it is acceptable to use the material without the copyright owner’s permission. In the US, works of research, teaching, commentary, criticism, or news reporting may be considered fair use but again it can vary from case to case.

How fair use comes to play is determined by the ‘four-factor test’ used to determine the fairness of use in the U.S and the same also applies to Section 52(1)(a) of the Copyright Act, 1957 of India. To decide on fair dealing usage in cases, as per the Division Bench of the Delhi High Court in India TV Independent News Service v. Yashraj Films Pvt. Ltd (2012), the court mentioned some factors which are:

  • Purpose and character of the dealing.
  • Nature of the work.
  • Amount and substantiality of the portion used.
  • Effect of the use on the market of copyrighted work. 

For a work to be clear of infringement in India, under Section 52(1)(a), it must establish fair dealing as per the US test and also fall within the reasons mentioned in Section 52. Indian courts have held that the emphasis of the work should not be the existing work but the new work created, which can use previous works for the applications as mentioned under Section 52(1)(a), including criticism and review, which should be interpreted liberally.

The example of Tik Tok

TikTok videos use previous work to review it a second time while ensuring that the emphasis remains on the new work created. The Supreme Court in the case of R.G. Anand v. Deluxe Films and Ors (1978). had noted that where the theme of the video is the same but is presented and treated differently so that the consequent work becomes a completely new work, no question of violation of copyright arises.

Since the audio library essential for short video services to thrive comprises commercial music which wasn’t explicitly designed for the social media format of being synched and performed by users creatively, as enabled by TikTok, there’s a sound argument for recognizing such use as transformative review. The creative reuse of the short music clips from TikTok’s audio library differs completely from the objective that these songs/films were created for the user’s original market. The viral 15-second TikTok videos don’t impact the first markets of those works negatively. They naturally kindle the interest of users via wider dissemination of the underlying copyrighted lyrics, dialogues, and music and thereby expand the markets for these songs and films rather than undermining them. Short video apps like Tik Tok are likely to get more demand as vehicles of free publicity for the underlying copyrighted works.

Copyright infringement issues

A copyright owner can seek damages for unpermitted use of his/her original work. The user who uses the existing content puts in a lot of hard work and thought into their video that goes in vain, because the content is in danger of being taken down or muted, and one could even be subject to potential heavy fines and/or legal action against them. Copyright infringement issues have evolved over the years. Some of them are as follows: 

Technology

Modern technology has made it easy to copy a product or information, and companies can easily get a considerable amount of revenue from replicating the products of other companies.

International issues

Copyright infringement and laws protecting copyright vary from country to country, with different options of remedies and amounts of protection. It can be a very difficult task to prove copyright ownership in an international setting and the domestic courts may look at copyright claims by international companies as a threat to the national productivity of the nation.

Photography and visual assets

In the world today, digital images have become so advanced that it is very easy to copy any image without the original person who took the photograph knowing it. For the past few years, the Copyright Office has been facing many copyright issues regarding photographers, graphic designers, artists, and illustrators.

Non-economic rights

Not every copyright infringement will necessarily result in a monetary loss. Moral rights have also been enforced, which cover the author’s right to be identified as the author of a work called the right of attribution.

The internet

The internet has made the world so advanced that it has created new obstacles for copyright holders. It has become very easy for any company around the world to access copyrighted material.

Remedies for infringement of copyright

Civil remedy

Section 55 of the Copyright Act, 1957, says that when a copyrighted work is infringed, the owner of the copyright is entitled to remedies by way of injunction, damages and accounts.

Criminal remedy

Section 63 of the Copyright Act, 1957, says that criminal proceedings can be taken against the infringer by the copyright holder, where imprisonment is for six-month, which can be extended up to 3 years with a fine of Rs. 50,000, which can extend to Rs. 2 lakhs.

But, if the defendant proves that he was not aware of the date of infringement and had no reasonable ground for believing that the copyright still existed, the plaintiff will not be entitled to any remedy or profits which were made by the defendant through the sale of the infringing copies.

Triller – short video platform

Triller is an American short video-sharing social networking app. It allows users to create and share short videos, including videos that are automatically in synchronization to the music through artificial intelligence. Triller is available for both iOS and Android software systems. Earlier the app only had a video editing feature but later on, the social networking features were added to it. In 2015, Triller was launched by co-founders Sammy Rubin and David Leiberman.

Triller is headquartered in Los Angeles, California, and Mike Lu is its current President and CEO. To date, Triller has raised over $100 million from several bank investments, Hollywood Studios, and several Media houses. During the 2020 pandemic, the app gained popularity in India and the United States. It became popular in India after Tik Tok faced a ban in India and it resulted in Triller registering more than 40 million downloads within 24 hours.

In November 2020, Triller expanded into sports promotion, distributing a pay-per-view boxing event between famous boxing champions like Mike Tyson and Roy Jones Jr. that also included appearances by famous sports, music, and entertainment personalities. Later, Triller announced a partnership with celebrities to further promote the boxing events.

How Triller works

The Triller app allows users to create short music videos, lip-sync, and skits videos that contain background music. The app’s highlight feature is its special auto-editing tool, which uses artificial intelligence to automatically combine separate video clips without the user having to do it themselves. After combining the individual clips, users can replace, rearrange, add filters, and even text to the clips as they wish.

When making a video, users have a choice to make a “music video” or “social video”. A social video does not require the user to add music in the background, unlike a music video. Users also have the option to link their accounts with Spotify or Apple Music so that they can incorporate their playlists. 

The project folder stores the incomplete videos of the user and once they are ready the user can share the video via the app on social media platforms like Instagram, Facebook, Whats App, Twitter, and YouTube. The videos shared can be downloaded through links in text messages.

The app is divided into three video feeds and they are: 

  • Creators that the user follows.
  • The social feed shows the trending videos by verified users.
  • Music feed which features exclusive music videos. 

Triller accounts can be both public or private. When an account is public, any user can view the videos on that account and when the account is private, only permitted users can view the videos on that particular account. The private account users have the option of changing their privacy settings on individual videos from private to public, making only selected videos to be viewed publicly on the app. 

How one can properly use or upload someone else’s content : some guidelines

Let’s look at the example of Youtube’s strict policies about copyright infringement. YouTube’s content uploading policy has strict rules with regard to copyright infringement. It uses the Content ID algorithm which then automatically compares the digital fingerprint of the uploaded videos against a database for detecting any copyright issue. YouTube has found a new way to soften copyright trolling and reduce the risk of receiving strikes. The YouTube Studio’s desktop version includes the ‘Checks’ feature that automatically checks for a copyright infringement/violation when the uploading process is taking place. This acts as a tool for content creators to identify any possible copyright violations before they even occur.

A simple procedure followed step by step by clarifying your intention that it is for a good cause and not to cheat can reduce many stressful situations when slammed with copyright infringement. One way to check is to presume that any created work you come across is protected under copyright law. In the absence of a precise statement from the copyright owner on a work that states it is in the public domain, there is a good chance that someone owns the rights to it. To gain permission, you can follow the given steps: 

  • It is important to know who is/are the copyright owner or owners of the content. (For example, third-party companies to facilitate licensing opportunities are used by some owners/owners). Creative Commons is one such non-profit company that provides public copyright licenses to enable the free distribution of copyrighted work. 
  • One should read the terms and conditions with any license and understand exactly how the content can be used and whether there are any limitations on the use. 
  • The next step is to seek consent from the owner/owners. Requesting use of the intellectual property one wishes from either the copyright owner or its third-party licensing facilitator is clarifying the intentions for the use. 
  • When one’s request for use is approved, one may use the intellectual property but it has to be as per the terms and conditions agreed upon with the owner/owners. 
  • One can always use music from the public domain in one’s videos. Many websites offer royalty-free background music for videos that you want to create.

Post Tik Tok scenario in India

There came many replacements to Tik Tok to tap into the Indian market which is very big. Mitron, Roposo, Triller, Josh, MX Player-Takatak, Chingari and Snack Video, etc. are few examples of these replacements or alternatives. Music labels in India have now served legal notices to these platforms. Copyright Issues The apps allow users to form short videos to the tune of music. According to law, to stream music, one must have rights. These rights are usually granted through licenses. The new short video platforms don’t have those. The platforms must acquire licenses from the copyright owners. TikTok itself came vulnerable to infringement of copyright when the National Music Publishers Association (NMPA), within the US, threatened to sue the platform for violation. But in India, these new apps haven’t secured adequate licenses for the songs utilized in videos. Acquiring such licenses takes an extended time and might sway customers and be a significant hurdle for these platforms. For example, Facebook took almost a year to add the music feature to its photo-sharing app Instagram in India.

There are 3 types of licenses that any short video app service modelled on Tik Tok’s format should acquire. These include:

  1. Synchronisation licenses basically are permission from the copyright holder to use a song that some other person published in a video format. 
  2. Publishing rights such as public performance licenses are required to play the song online.
  3. Mechanical rights pertaining to the sound recording of a copyrighted work for streaming, reproduction and storage are also needed.

This means that the video service provider’s audio library will critically regulate the volume and variety of content that users can inspirationally interact with to make their own videos. Only big companies like Facebook and Google are probably proficient in providing a substitute to Tik Tok, given the large-scale investment and expensive music licensing involved.

Post Tik Tok, Facebook has signed a global deal with Indian music label Saregama for its video experiences such as Reels or Music Stickers on Stories on Facebook and Instagram and not to mention the recent licensing deal with Indian Performing Rights Society Limited (IPRS) to license IPRS’ music for similar uses. 

Some important cases

T-series accuses Triller of copyright infringement 

T-series is an Indian music and film production company. It is mainly known for its Bollywood music, soundtracks, and Indi-pop music. T-Series is India’s biggest music recording company which in 2014 had about a 35% share of the Indian music market and it continues to maintain its position even today. The music and entertainment company also owns and operates its own YouTube channel, with 186 million subscribers. T-Series has had reasonable success as a film production company. T-Series has a registered collection encompassing over 40,000 videos and more than 1.5 lakh songs, which provides a user more than 20,000 hours of music to listen to, and that too in many different languages. Even the major global internet networks like Amazon, Facebook, Amazon Prime, Amazon Music, Saavan, Gaana, Spotify, etc, have already taken the license from T-Series for using its copyrighted content.

T-Series has accused Triller of copyright infringement and it has sent a legal notice regarding the same to Triller. It has warned the social networking app not to use any of its work on its platform in any manner or form. The accusations in the legal notice against the social networking app are that it was illegally using T-series copyrighted music content, reproducing it, storing it, streaming its copyrighted sound recordings, lyrics and compositions. T-series also made a similar infringement charge for using its images from the cinematographic library and posters. T-series told Triller to straightaway cease and stop the activity from taking place. 

The company, ‘Super Cassettes Industries Private Limited’, which is operated under the brand name of ‘T-Series’, is claiming Rs 3.5 crores in damages and to give accounts of all revenues which were illegally earned by the social networking app from the copyrighted content, as per infringement notice. Triller has not yet replied to the legal notice on this particular matter.

Wixen v. Triller (2020) copyright infringement lawsuit complaint

Wixen Music Publishing, run by Randall Wixen, sued the short video-sharing app Triller accusing it of copyright infringement on more than 1,000 of its songs. It claimed $50 million from Triller as damages for the purported copyright infringement.

Triller’s app allows users to create and share short videos, typically including music. Wixen music publishing company is known for managing more than 50,000 songs which are written and owned by more than 2,000 of its clients, some of which are world-famous singers. Triller allows its users to create 15-second music videos and share them with friends and contacts within the app by allowing its users to choose any 15 seconds of the song they wish to use and to make a little music video from it.

Earlier, Triller’s CEO seemed to agree on legitimizing the license fully to which Wixen also encouraged the short video platform app. But later no such arrangement was reached and Wixen decided to file a lawsuit for copyright infringement.

The claims which Wixen made on Triller are:

  1. Triller had been wilfully infringing its musical compositions as they were being used in the app without a proper license.
  2. Triller also allowed its users to include the music compositions of Wixen in its videos without the authorization of the music publishing company and without paying compensation to the singers.
  3. Triller was very well aware of the fact that it needed to negotiate licenses with Wixen and other publishers to use their works but it didn’t do so.
  4. Triller has not fully licensed the National Music Publishers Association (NMPA) members’ songs, which it offers on its platform.
  5. Among the other evidence against Triller is that it continued to use, copy, and exploit Wixen’s works even after Wixen notified Triller about the fact that it had not obtained the proper licenses for use of its work. 
  6. Wixen argued that rather than paying the songwriters whose works it controls, Triller chooses to give mega-bucks deals to social influencers by providing them with mansions, expensive cars, and dinners at an expensive restaurant.

Triller’s CEO is quoted to have said that the Triller app puts artists and creators first, and aims to create a network that benefits everyone as a whole. The app has licensing deals and partnerships with various major music companies. Triller argued in its defense that it had already removed the two songs which were in question, which were put up by its users, not a short video social networking app.

Finally, a federal judge dismissed Wixen Music Publishing’s $50 million lawsuit against Triller over a deficient legal filing. The court, in this case, said that the 1909 Copyright Act would govern when the ownership of a work is at issue but the cases upon which Wixen relied, in this case, could not clarify from the Complaint whether the 1976 Copyright Act or the 1909 Copyright Act applied.

Triller hits YouTube channel operator with copyright suit

Triller accused the operator of ‘Your EXTRA’, a YouTube channel, of copyright infringement over uploading and distribution of a boxing match game. The complaint was filed at the US District Court for the Central District of California on June 16, 2021.

Triller is also the copyright owner and publisher of “Triller Fight Club” which is a broadcaster of the famous boxers Jake Paul versus Ben Askren boxing event. According to the filing, Triller’s copyright in the broadcast became effective on April 30, 2021, and was decided on May 4, 2021. The YouTube channel has had more than 113,000 subscribers since it started in 2017.

After getting to know about the alleged infringement, Triller notified YouTube which removed the content. Triller alleges that Arvin De La Santos, the operator of the YouTube channel ‘Your EXTRA’, has unlawfully uploaded, distributed, and publicly displayed the broadcasting to its channel users without authorization from the short video social networking app. Triller insists that to buy and view a broadcast through the satellite TV provider which is for private use, non-commercial viewing, the individual buyer will be subjected to the copyright – terms which explicitly say that any unauthorized reproduction or distribution of the copyrighted work is illegal. Keeping this in mind, the filing also claims that the operator had obtained the broadcast through internet websites, cable, satellite pay-per-view purchase and later illegally re-transmitted the broadcast and publicly uploaded it by illegal copying on its YouTube channel.

Triller has demanded copyright infringement and damages done to it, with the operator’s alleged violation of the Federal Communications Act (1934).

Conclusion

Music licenses from social media are also a superb source of revenue for music labels and a revenue stream that didn’t exist before such platforms came into being. Online streaming is credited for reviving the music business. This is the reason why the music labels fiercely protect their copyrights by negotiating high stake licensing deals. Platforms should build awareness of the legal risks around infringing copyrights into user experience and as a part of the sign-up process. There has been much work done to enlighten users on when action will be taken in the event of a privacy or harassment issue, yet there is little attention paid to the elemental issues around the sharing of third-party content. Policies are one thing but ensuring that they are adhered to and should transcend a threat of enforcement and account suspension.

Creators should only upload videos that they have not created themselves or that they are authorized to use. This effectively implies that they ought to not upload videos that they didn’t create, or use content in their videos that somebody else owns the copyright to, like music tracks, snippets of copyrighted programs, or videos made by other users, without necessary authorizations.

References


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