This article has been written by Smitanshu Choudhary, pursuing the Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.

Introduction 

Intellectual Property Rights are of critical importance when it comes to foster innovation, as, without such protection, businesses, corporations, and individuals would not be able to realize the full advantages of their innovations, and they would spend less time on research and development as a result. Artists would also not be fairly rewarded for their work and would result in the declination of cultural vitality. However, such a necessity does not entail that these rights can exist without any form of limitations or exceptions. In order the ascertain an appropriate balance between the interests of the right holders and users of such protected works, Intellectual Property Rights (hereinafter IPR) allow certain limitations, .i.e., cases in which the protected works can be used without the permission of the right holder. 

Copyright is a branch of IPR, which gives its owner an exclusive right over creative work for a limited time. However, as mentioned above, none of the IPRs is absolute, and they have their limitations; one of the limitations on copyrights is the principle of “fair use”. In this short article, we will be looking into what the principle of fair use is and how it functions on various social media platforms. 

What is fair use? 

Fair use is an affirmative defense that can be used in response to a copyright owner’s accusation that someone is infringing on their copyright. Fair use allows a party to use a copyrighted work for purposes such as criticism, satire, news reporting, teaching, scholarship, or research without the permission of the copyright owner. These uses are mere examples of what could be deemed fair use; they do not represent what will always be judged fair use. In reality, because fair use is evaluated on a case-by-case basis, there are no hard and fast standards. However, copyright law establishes four elements that must be examined when determining whether a use is fair. These elements are:

• The nature of copyrighted work used;
• The substantiality of the portion of the copyrighted portion used;
• The purpose and character of the copyrighted material used; 
• The effect of the use of such copyrighted material upon the potential market. 

Although one component may weigh more heavily in a fair use judgment, all of the factors must be taken into account, and no single factor can determine whether a usage fits within the fair use exemption. However, in most cases, the third and fourth factors are the influential ones. 

Limitations on copyright under the Copyright Act, 1957

Section 52 of the Copyright Act, 1957 provides for certain acts, which do not constitute an infringement of copyright, .i.e., fair dealing with creative works (not being a computer program) for the purposes of: 

• Research/private use;
• Review;
• Reproduction for the purpose of a judicial proceeding; 
• Reading or recitation in public of any reasonable extract, et cetera. 

Fair use and intellectual property infringement on social media platforms

How does copyright function on social media platforms?

When one posts his or her creative work on social media, the person retains copyrights on the work if it is eligible. No person can use the said copyrighted work without the owner’s permission; however, there exists an exception to the owner’s copyright enshrined in the site’s terms of use. Usually, such terms of services give the website a license to use the copyrighted work without the owner’s permission. 

Nonetheless, posting work on social media does not entail that anyone can use your work without attribution. Whenever someone used any creative work of someone else, they have to attribute it to the owner of the work. If the owner were not attributed for his work, even if the work is being utilized outside social media platforms, it would amount to infringement of terms of use and copyright.

Now that we have an idea of how copyright works on social media platforms, let us look into the terms of service of different social media platforms, which allow the posting of copyrighted material, as long as it has been used under the ambit of fair use. 

Facebook and copyright

Facebook’s terms of service state that all the content and information uploaded on Facebook can be controlled by the owner via the privacy and application settings. Furthermore, in the case of content protected by IPRs, the owners grant Facebook a non-transferable, royalty-free license to use any content posted by the owner on Facebook. It should be noted that as Facebook owns Instagram, its terms of use are quite similar to that of Facebook. 

Pinterest and copyright

Pinterest is a website, which allows users to share or post their original photos. However, just like Facebook, Pinterest’s terms of service entail that the owner gives Pinterest a non-exclusive, royalty-free, sub-licensable global license to use the uploaded pictures in any manner so desirable for operating and providing the service to all users.  Pinterest can use copyrighted work without any form of payment, as long as a person has agreed to its terms of use; however, Pinterest’s copyrights statement includes a link via which a person can file a complaint in case he or she feels that their copyright has been violated.

Twitter and copyright

Just like the above-mentioned terms of service of Facebook and Pinterest, even Twitter’s terms of service entail the owner granting Twitter a global license, which enables Twitter to make someone’s original tweets to every user. 

Infringement of copyright on social media platforms 

There exists a widespread belief among the masses that everything that is present on social media websites is free to use, as everything present on such platforms is freely accessible and available. However, we must understand that the content present on social media is not “free for all”. When one posts their original content on social media, it is a mere publication and not a license for free use. Such confusion usually arises due to the existing limitations on IPR enshrined in terms of the use of social media platforms. However, such terms of use only garner a non-exclusive license, and the content on social media platforms can be used by a third party only on social media or on portals that have a connection to it or with the services provided by such social media platforms. Such confusion often leads to the infringement of copyrights on social media platforms, as people are unable to differentiate between fair use and infringement. Due to the free availability of content, third parties use music, photos, and videos without the owner’s permission; thus, resulting in infringement of copyright. 

One of the most common forms of copyright infringement is the publishing of images without consent. For example, German law states that if you take a picture with third parties, that party also has a copyright over the picture, and such a photo cannot be posted without the consent of the third party involved. In another case, there have been instances of big fashion brands copying designs of independent fashion designers; many have claimed that big businesses use social media to pull ideas from small businesses. 

Algorithmic enforcement of copyright

Nowadays, various social media platforms have started using algorithmic software to enforce copyright over their respective social media platforms. This was done to enact a more efficient way to enforce copyright on social media platforms. Prior to this, copyright was enforced manually, as a result of which copyright enforcement was quite slow, and usually, claims took very long to be processed. One such example of algorithmic enforcement of copyright is the content ID of YouTube. 

YouTube grants Content ID to copyright owners; however, to be approved for copyright, the person must have exclusive rights over the substantial body of the original material. The content owners submit the original material to a database of YouTube, via which YouTube compares every video uploaded to the database and sends a Content ID claim to the uploader of the video if an infringement is detected. This is done in order to give the copyright owner a free hand in deciding what to do with the infringing content. The copyright owner has three options in case of infringement, namely, Block the video, Monetize the video or track the video’s viewership statistics. 

If the person who received the content ID claim believes that the claim is unfair, he can contend the said claim (if he has all the rights to the content in the disputed video, or there has been a case of misidentification). If a person chooses to dispute a Content ID claim, the owner of the copyright would be notified of the dispute so raised, and they would have 30 days to respond. 

Even live streams are scanned for third-party content, including copyrighted content. When third party content is detected, the stream is replaced with the image of the right holder and the streamer is warned about the infringement so that he can take action and dissolve the issue of infringement for the continuation of the stream; otherwise, the stream would be interrupted or terminated. 

Conclusion

Although limitations on IPR exist to maintain the balance of rights between the rights of users and the rights of the IPR owners, such limitations, due to lack of proper understanding on the part of the general masses or the willful ignorance on the part of the large organizations, limitations have been equated with infringement. Thus, it has become necessary to take proper measures for the enforcement of IPR on social media platforms. Such enforcement has occurred in the form of algorithmic enforcement of IPR on social media platforms. 

References

1. What Is Fair Use? – Copyright Overview by Rich Stim – Stanford Copyright and Fair Use Center.
2. Limitations and Exceptions (WIPO.int).
3. Copyright Issues in Social Media (natlawreview.com).
4. How Copyright Works with Social Media (thebalancesmb.com).
5. Copyright Act, 1957: https://copyright.gov.in/documents/copyrightrules1957.pdf.
6. Copyright | Facebook Help Centre.
7. Copyright | Pinterest Policy.
8. Twitter’s copyright policy | Twitter Help.
9. Fashion’s copycat problem: why brands like Zara get away with rip-offs – Vox.

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