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This article is written by Arkadyuti Sarkar, pursuing Diploma in Intellectual Property, Media and Entertainment Laws, from LawSikho.

Introduction

The majority of us either possess an Instagram account or might have heard about the social media platform at one point or another. Instagram (commonly abbreviated to IG or Insta) is a US-based photo and video sharing social networking platform presently owned by Facebook. The creators are Kevin Systrom and Mike Krieger. Insta was originally launched on ios in October 2010. However, by 2016, it became available on other platforms.

Instagram allows the users to upload media editable with filters, organisable with hashtags that can be geographically tagged. The posts can be shared publicly or with pre-approved followers. Users can browse the contents of other users by tags and locations and view trending content. Moreover, users can like photos and follow other users to add their content to a feed.

But has it ever appeared in your mind whether copyright infringement occurs on the platform, or what happens on the occurrence of such issues?

Let us find out.

What can be Copyrighted?

Copyright is a legal right protecting the original works of authorship. Usually, if someone creates an original work, then he/she is entitled to copyright protection over such work from the very moments of its creation.

Copyright encompasses a wide variety of types of works, including:

  • Movies, TV shows, broadcast videos, video games, paintings, photographs, etc known as video or audio-visual works.
  • Songs, musical compositions, sound recordings, podcasts are known as audio works. 
  • Books, plays, manuscripts, articles, musical scores are known as written works.

However, it is noteworthy that only original work is eligible for copyright protection. For having sufficient originality to invite copyright protection, a work must be created by the author themselves and have some minimal amount of creativity.

Typically, names, titles, slogans, or short phrases lack sufficient originality to qualify for copyright protection. For eg: the symbol “+” is likely not to be a copyright subject, but a painting consisting of shapes and colors arranged in a unique pattern is likely to obtain copyright protection.

Copyright protection generally doesn’t extend to facts or ideas, however, it may protect the original words or images expressing a fact or idea. This means that one may be able to express the same idea or fact as another author, as long as he/she doesn’t copy that author’s way of expressing that idea or fact. For eg: a play writer may be unable to copyright the idea of a man waking up and repeating the same day over and over again, but the script for a play or movie expressing that idea could be a copyright subject.

Concept of Public domain vis-a-vis public profiles 

The term “public domain” usually refers to creative materials that are unprotected by copyright, trademark, patent, or other intellectual property laws. The public at large has ownership over these works, and not an individual author or artist. Anyone may use a public domain work without obtaining any prior permission, but no one can ever own it.

For eg: images of famous historical buildings and monuments, or works of Shakespeare, the national anthem of a country, etc.

There are four common ways that works arrive in the public domain:

  • Expiration of the copyright.
  • Failure of the Copyright owner to renew the copyright licensing rules.
  • The copyright owner intentionally places it in the public domain.
  • Such work does not come under the ambit of copyright protection.

A public profile refers to all the pieces of information and details pertaining to a user that is available for being viewed by other users on a social media platform, or a website.

For eg: Profile of a famous celebrity on IG, or of a reputed organization or company, etc.

Copyright over the contents posted on Instagram

Copyright ownership over the images posted on IG

As per Instagram’s claims, the ownership of the image or content rests with the user. However, as per the terms and conditions, the user permits Instagram a “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use their content”. This means that Instagram possesses the absolute rights of the original owner of the uploaded content, aside from the fact that it is a non-exclusive license. It is imperative that the photographers are well aware of this because if they sell an image that is under an exclusive license, posting such an image on Instagram would result in a breach of that license.

Does everything that I post under my profile get automatic copyright protection?

Well, this is a tricky question to answer. As per the terms of IG, it suggests the user makes sure only to post contents on the platform if the user is the creator, or rightful owner, or has obtained prior permission from the actual owner prior to posting such content. In the event of any copyright infringement, there is an option for reporting the content.

Therefore following steps are suggested before uploading content on IG:

  • Putting a copyright symbol on the content.
  • Include a link to the user’s email or website in the profile so people can easily obtain permission from the user prior to using such content.
  • Posting only low-resolution images.
  • Using watermarks on the content.

Ways to make sure that the contents posted on Instagram are non-violative of the copyright provisions

As per Instagram’s Terms of Use and Community Guidelines, a user can only post content on Instagram that is not violative of the copyright or other intellectual property rights of others. The best way to ensure this is to only post content that is created by the creator.

There remains a possibility of infringing someone else’s copyright while posting their content on Instagram, even if:

  • The uploader has bought or downloaded such content (ex: a song from Spotify).
  • The uploading user has recorded the content onto their own recording device (examples: background music at a party, concert, sporting event, wedding, etc.).
  • The uploader has credited the copyright owner.
  • The uploader has Included a disclaimer asserting that no copyright infringement was intended.
  • The uploader does not intend to profit from it.
  • The uploader has modified the work or added his original material to the content.
  • The uploaded content has been obtained from the internet.
  • The uploader saw others uploading the same content
  • The uploader thought it to be under fair use.

Therefore, before posting on Instagram, one needs to determine :

  • If he/she is the creator o such content?
  • Does he/she is allowed to use all of the content included in their post?
  • Whether the use of the content comes within an exception to Copyright infringement?
  • Whether the content has copyright protection?

It is usually a good idea to obtain written permission from the author of the work, prior to posting the content on Instagram. The uploading user might have the ability to use someone else’s content on the platform if he has obtained prior permission from them, for eg: through obtaining a license. The user may also be able to use someone else’s content if the same is in the public domain, comes under the fair use, or there is another exception to copyright.

Removal of Content Posted on Instagram for being violative of Copyright

Instagram issues a notification to the uploader if any of his posted content or contents are removed from the platform if it has been reported of being violative of the Copyright or intellectual property rights. However, if the uploading user bonafide believes that the content should not have been removed, he/she can follow up with the copyright owner directly in an attempt to settle the issue.

Appealing the removal of content

If the content has been removed because of a copyright report, the user who had posted it can submit an appeal, following which he/she will receive instructions about how to appeal in the messaging the Instagram authority sends him. 

Repeated postings of contents violating the Copyright or other rights of someone else

By using Instagram, the user agrees to the Terms of Use of the platform, which prohibits people from taking any action against Instagram, in event of infringement or violation of someone else’s intellectual property rights, or is otherwise legally violative.

Repeat Infringer Policy

If the user repeatedly posts content that infringes someone else’s copyright or other intellectual property rights, such as trademarks, the account of such user may be disabled or the Page of such user be removed under Instagram’s repeat infringer policy.

As per this policy, the infringing user’s ability to post photos or videos may be limited, and he/she could also lose access to certain features or functionality in the platform. The measures adopted under the policy may depend on the nature of the report and its site of posting.

If some post is restored due to an appeal or because an owner has withdrawn the report, then Insta authority will take that restoration into account under their repeat infringer policy.

The Process followed by the IG authority to abide by the United States Digital Millennium Copyright Act counter notifications

Instagram authority complies with the notice-and-takedown procedures in accordance with Section 512(c) of the United States Digital Millennium Copyright Act (DMCA), which is applicable to the reported content and removed for being violative of the U.S. copyrights.

If the content is removed under the DMCA, the user will receive instructions regarding filing a counter-notification, in the messages sent by the IG authority. The user should only submit a counter-notification if such content was removed because of a mistake or misidentification. However, if any content was removed unrelated to copyright or other intellectual property issues then the user shall not receive such notification.

When the IG authority receives a valid DMCA counter-notification, it forwards it to the reporter party of such content. The information received by the reporter party includes the contact information of the party filing the counter-notification, which they can use to contact the latter. If the IG authority provides the counter-notification to the reporter party, and they don’t notify the IG authority that they have filed a judicial suit seeking an order to keep the content down, the authority will restore or cease disabling eligible content under the DMCA. This process can take up to 14 business days. However, in rare instances, the IG authority may be unable to restore content due to technical limitations. If this happens, the counter notifier will be updated and permitted to post the content again at their discretion.

Any Content restored on the basis of an effective DMCA counter-notification will not be counted against if the user is under the IG’srepeat infringer policy.

Reporting Copyright Infringement on Instagram

How to report copyright infringement?

If the user believes that any content on Instagram is infringing their copyright, they can take any or more of the following actions:

  • Reporting it to the IG authority by filling out this form.
  • Contacting the designated agent under the provisions of notice and counter-notice procedures of the United States Digital Millennium Copyright Act. While contacting the designated agent, the user must surely include a complete copyright claim to such content in their report.

To be noted:

  • Only the copyright owner or their authorized representative can file a report for the copyright infringement. If the user believes something on Instagram infringes someone else’s copyright, the original owner has to be notified.
  • IG regularly provides the rights owner’s name, user’s email, and the details of the report to the person who posted the impugned content. If the user is an authorized representative submitting a report, IG authority gives the name of the organization or client owning the questionable right. For this reason, the user may provide a valid generic business or professional email.

Things to be considered while submitting an infringement report

Before submitting a report, the reporting user should consider whether the content he is desirous of reporting may be a permissible use of his copyright. If he is unsure whether the content infringes his copyright or other intellectual property rights as it may be a fair use or otherwise, he may seek legal guidance.

It is noteworthy that submitting an intellectual property infringement report is a serious matter having potential legal consequences. Intentional submission of misleading or otherwise fraudulent copyright or trademark infringement reports may lead to Facebook taking action, including termination of the user’s account.

For copyright, it is imperatively noteworthy that intentional submission of a fraudulent and misleading report may also attract liability for damages under section 512(f) of the United States Digital Millennium Copyright Act or resembling legal provisions in other countries.

Can a user report someone else’s infringed content?

Only a real owner or their authorized representative of intellectual property right may report a suspected infringement. If a user believes that content on Instagram infringes someone else’s copyright or trademark rights, he may notify the real owner about such infringement.

Information to be included in a Copyright report to IG

The most rapid and easiest way for the submission of a copyright infringement claim to IG can be done by using the online form. Irrespective of the mode of submission of the report, Instagram requires the following information to be able to process such a report:

  • The complete contact information of the user reporting the content (full name, email address, and contact number).
  • A description of the content on the site that the user claims to cause copyright infringement.
  • Information reasonably sufficient to allow the IG authority to locate the material on their site. The easiest method of doing this is by providing web addresses (URLs) leading directly to the allegedly infringing content.
  • A declaration asserting:
    • That the user has a bonafide belief that the use of the copyrighted content described above, in the manner the user has complained of, is unauthorized by the copyright owner, or its agent, or the law.
    • The accuracy of the information in the notice.
    • Under penalty of perjury, the user is the owner or is authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed.
    • The user’s electronic signature or physical signature.

What happens after submitting a Copyright infringement report to the IG authority?

If the user has submitted a copyright report through the online form or via email, such user shall receive an automated email containing information about the report, including a unique report number. The user should save this number in case you need to contact us about your report.

Sometimes, Insta might respond to the report and enquire for more information. If the user receives a message from the IG team requiring further information about the report, the user should respond directly to that message. The user’s response will be received by our team so they can continue to look into your report.

It is to be noted that Instagram regularly provides the uploader who posted the content with the following information about the report:

  • Report number
  • Rights owner’s name
  • The email address provided by the reporting party
  • Details of the report
  • Instructions on how to submit an appeal

The user whose content was removed may contact the reporter with the information provided by the user. For this reason, the user may want to provide a valid professional email address.

Removing an already submitted infringement report

If the user has submitted an intellectual property report, but then settled the issue through an agreement with the person who posted the content or has reported the content by mistake, he can withdraw such a report.

The best way of doing this is by emailing the IG at [email protected] and referring the original report number.

Once the IG authority receives notice that the user likes to withdraw such a report, they will restore the content in case it has already been removed and then confirm it to the complainant via email. However, Instagram may be unable in the restoration of the content in certain scenarios which includes technical limitations, or if the removal was for other reasons unrelated to the intellectual property report.

Conclusions

Therefore, it is inferable that a plethora of copyright issues can arise while posting pictures or other content on Instagram. The infringement can occur even if the person uploading an impugned content has no intention of infringing the copyright, or has credited the original owner or creator, or has added a disclaimer. However, it is advisable that any person uploading content or picture on the platform must acknowledge himself if he/she is the creator or owner?/ has permission to use such content?/ whether the use is permitted under copyright exception?/ whether such content is copyrighted?

However, an infringement can be reported only by the owner of the copyrighted content or an authorized agent. If someone notices any infringed content belonging to some other user, then such a user has to be intimated about such infringement.

Instagram acts really well in respect of infringement reports and they have a dedicated team for the same.

References

  1. https://fairuse.stanford.edu/overview/public-domain/welcome/#:~:text=The%20term%20%E2%80%9Cpublic%20domain%E2%80%9D%20refers,one%20can%20ever%20own%20it.
  2. https://help.instagram.com/1523149744588055?helpref=faq_content

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