This article is written by Sangini Nagpal, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from Lawsikho.com.

Introduction

There is a general, albeit unfounded, assumption that anything on social networking platforms and, by extension, on the Internet, can be freely used (to the degree that everything that is contained online is generally freely available and easily accessible, and therefore free). Many believe all of the content posted on social media belongs to everyone and is free for everyone. 

That is not the case however. It is simply published when content is posted on social media platforms (either on a person’s user profile, or on a product brand or company-related page). But that doesn’t mean that social media users’ privileges are necessarily delegated to anyone so that everyone can use the content as they see fit.

“What’s happening?” asks Twitter, “What’s on your mind?” asks Facebook, “Broadcast Yourself” asks YouTube, “Capture and Share the World’s Moments” asks Instagram! You upload either a picture or a story of yourself hanging out with your friends, family or even alone, and you hit ‘Upload’ and there is your content available, as per your privacy settings, either for your friends and family to see or everyone who you don’t even know.

Are you aware that although you legally maintain ownership of the content, you have allowed Facebook to store, copy, and share it with others, including service providers? In other words, you now have lost full control over the use of the material. Well, Facebook isn’t the only social media site that can enforce these conditions. This gives Instagram, Twitter, YouTube, Tinder, LinkedIn and even other social media platforms the right to reuse, sub-license use and use the images. These websites even collect your data and images for their promoting, marketing and advertising purposes.

Every website has its own terms and conditions with which the user must comply, without consenting with others who cannot access their services. Typically speaking, the public does not make attempts to read these terms and conditions and simply comply with them, thereby contributing to a bunch of problems. These terms and conditions are usually drafted in the legal language which makes it difficult for prudent background people to understand them. But it is said that one-sided efforts are useless because those go in vain i.e. while efforts are made by website owners to make them easy to understand, people do not make any effort to read and understand them before they accept them. Here’s what each of these social networks has to say about ownership:

FACEBOOK:

“… 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.”

INSTAGRAM:

“… 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.”

TWITTER:

“… 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 …”

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 …”

It is stated in the terms and conditions of most of these websites that the owner of the work that posted through their platform is the author himself, but they give the owner of the website free license to use the material elsewhere or even sub-license it to others. It also gives them permission to share the material with others without even paying you a single penny. This means that one cannot gain anything by having the work posted to the website out of the efforts that one puts in. Some of the ways to prevent that is:

• by reading and knowing the terms and conditions, 
• getting licensed copyright (copyright, or aspects thereof, may be assigned or transferred from one party to another creating a “license to use.” A very common example of copyright licensing is when a musician records an album for a record company and agrees to transfer all copyrights in the recordings to the record company in exchange for royalties and other forms of compensation.), 
• not depending on only one means, 
• making our own forum (make your own platform for sharing things), in short, 
• being aware of and alert to one’s rights.

The terms of the license cannot be revoked and you cannot stop the reuse of the content by others even after you have deleted your own account, once you agree to them. That means that it can be difficult to call back an intimate photo exchanged with or without your permission, or a party picture that you don’t want people to see anymore. Copyright law does not protect you here, since the terms of service of the website are structured to make it impossible to sue them for what users are doing online. They try to hold the party that posts the content responsible, while the images continue to have their own online life.

“Fairmont Hotels Pvt. Ltd. v. Bhupinder Singh” (2018):

A dispute arose in 2015, when the Plaintiff, Fairmont Hotels Pvt. Ltd. realized that the pictures belonging to the plaintiff had been displayed by the defendant, Mr. Bhupender Singh Hotel pictures had been posted on the Defendant’s Facebook page without the Plaintiff’s requisite authorization or permission. A suit for infringement of the Plaintiff’s copyright was subsequently filed before the Delhi Hon’ble High Court. The Plaintiff argued that such an unfair act by the Defendant means attracting the innocent people in the Plaintiff’s guise. It happened that the Defendant was the Plaintiff’s employee and had opened his own hotel in Manali after leaving the service and used the Plaintiff’s images to promote his own new hotel.

The plaintiff filed two suits; he sought an ex parte injunction in the original suit against the Defendant’s further use of the photographs concerned on his Facebook page. The Plaintiff then also submitted the photographs in question as evidence to claim permanent injunction. Therefore, an interim injunction was passed against the Defendant, after which the Defendant undertook not to misuse the photographs on its Facebook page. Furthermore, after considering all the arguments submitted by both parties and the financial status of the defendant, the Hon’ble High Court of Delhi granted a permanent injunction against the defendant’s misuse of the photographs and issued a direction of Rs.50,000/- to be made to the Plaintiff.

The 1957 Copyright Act is exhaustive, which can effectively protect the rights of photographs posted on social media websites and the rights of photographers in India. This is because, not only does the law protect hard copy/ paper photographs taken but also photographs posted online. This protection for online photographs is not expressly mentioned in the Copyright Act, but the current judgments in the purview of such matters prove time and time again that the meaning of the act’s “photographs” u/ s 2(c) also includes photographs posted on online platforms. Consequently, the existing provisions on copyright law are competent to overcome any obstacles to social media users and all the new technology.

For example, the use of third-party photographs was precisely the subject of a US lawsuit that resulted in a judgment of liability for copyright infringement. It has been the dispute between Haitian photographer Daniel Morel and the Agence France Presse and Getty Images press agencies.

The details were as follows: Daniel Morel, who was in Haiti at the time of the 2010 earthquake, took some photos there and posted them on his TwitPic page, the users’ Twitter picture sharing application. The referred press agencies had access to the images via a third user and sold them to media companies around the world, without the photographer’s permission and without mentioning him as the author of the same.  

The litigation lasted 3 years, with the subsequent costs, and Judge Alison Nathan’s federal jury finally ordered the agencies to pay $1,200,000 as compensation for infringement of intellectual property rights. Copyright was deemed to have been infringed precisely on the grounds that Twitter’s licenses do not include the right to use user content for commercial purposes, contrary to the argument put forward by the agency (that whatever is published on Twitter may be used without any authorisation being required).

Similar circumstances existed in Spain too. For example, there have been several cases in which companies in the fashion industry have used photographs they had found on Instagram without their respective authors’ permission and printed them on some of the clothes in their collections. Although they have not reached the court system, these matters have been the subject of claims submitted by the authors involved and have resulted in settlement agreements including, in some cases, a public apology from the companies for their unauthorized use of photographs. 

The repercussions of these disputes can have a serious impact on the image and reputation of the companies involved both on social media sites and in general media. 

Consequently, although it may seem obvious to say that it is necessary to request an authorization to use third-party content, the reality shows that infringements are very often committed.

So who actually owns the content uploaded by you on Social Media Platforms??

You do own the content that you post on social media, but you have allowed each platform to use it as specified in their terms and conditions. Such licenses are somewhat different from each other but they both offer the right to use the copyrighted work in whatever way they see fit to the social media site.

Plausibly, they might use it economically and even sell or sub-license their license to a third party to use, and as each stipulates that the license is “royalty-free,” you will never receive any portion of the benefit. Now, this is by no means a cause for panic; the probability of Facebook trying to sell copies of your dance recital pictures of your niece is very small. What this does mean, though, is that if one day in a Facebook ad one of your pictures ends up on TV, you can’t do anything about it.

“Platforms also promote online uploading and sharing of images to other users. This includes sharing images you post to which you may own copyright and those to which you do not hold the rights. Also, the platform could share the images to third parties that use them. Tinder’s and Instagram’s terms of service, for example, requires that you agree to use them and use anything you share on Facebook.”

Over the last two decades, print media have rapidly transformed into new media that includes Information and communication technologies made online, digital and networked. Today a growing number of entertainments of human behaviour are all-embracing data and computational processes can be found in many fields and context, Social Media included. 

Conclusion

The shift from conventional media to new media is palpable. That shift has happened and has raised several questions and debates about social media pros and cons and other similar topics.

In one respect, certain people believe they cannot even imagine a world without new media; whereas on the other hand, digital technology poses other obstacles. The only option left at this juncture is to address these challenges posed by the new media in a desired manner so that the maximum can be achieved from these social media outlets. Both service providers and the competing authorities concerned should be of the appropriate level to look into this matter, to provide the audience with a better digital media climate.

“As an intervention on mental health and resolving concerns about a lack of credibility and competition in online culture, some sites are experimenting with eliminating ‘likes’ to see what happens. The platform will of course still have its own data about who is sharing what, but it will not be so visible to users. It’s also a way to reinvent platform interest as their audiences’ age and there’s more competition from other applications.”

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