This article has been written by Lakshmi. V. Pillai, pursuing B.A. LL.B from GLS Law College, Ahmedabad. The present article is a case analysis of US Court judgement on a copyright infringement with respect to the Indian legal perspective.
Artists need to be alert while making their accounts public on social media platforms.
Copyright is an exclusive right given to the creator for their artistic work. For artists, it is their blood and bone. As per Sec 2(c) of the Copyright Act, 1957 an ‘artistic work’ covers any painting, drawing, sculpture, photograph, work of architecture, or any work of artistic craftsmanship. In other words, we can say that an ‘artistic work’ should be an original expression of thought in which the artist has applied his skill and judgment other than mere mechanical exercise to create the work. A recent judgment by the Southern District of New York is a bit concerning for the artists with regards to the protection of their rights in the social media platforms like Facebook, Instagram or any other platforms which facilitates the sharing of ideas, thoughts, and information through the building of virtual networks and communities. This judgment also questions the validity of e-contracts and the privacy protection of artists on social media platforms.
The case of Sinclair Vs. Ziff Davis, LLC, and Mashable, Inc., decided on Apr. 13, 2020, is very interesting, and the findings made by the US court are also quite gripping. The court justified the judgment by giving a clear interpretation of the law. However, the concern lies in the point that, is it justifiable to put artists in dilemma for choosing their account to be in ‘public mode’ or ‘private mode’?
1) Facts of the case
Firstly, we will understand the facts of the case, then we will proceed with the legal aspects. The facts are as follows:
In this case, Sinclair (“Plaintiff”) is a professional photographer who filed the case against Mashable, Inc. and its parent company (together, “Defendants”) asserting that Defendants infringed Plaintiff’s copyright by using the Plaintiff’s copyrighted photographs on the Defendants website. Plaintiff has a public account on Instagram. And in this particular case, Instagram has used the sub-licensing method to give away the photograph to the Defendants. It is also important to note here that before sub-licensing the photo from Instagram, the Defendant contacted the Plaintiff for the photos to which the Plaintiff denied. Certainly, it is to be noted here that Instagram is not a party to this case.
2) Court Analysis
While reading the judgment it can be said that the court has rightly interpreted the law. However, the question which comes to our mind is that does sub-licensing the photo of the photographer without acknowledging the same to the photographer infringes the right of the photographer or not?
In the judgment, the court has decided on particular legal issues. So let’s just briefly go through the legal points of the court analysis.
- The second issue raised by the Plaintiff was whether Mashable’s failure to obtain a license directly from the Plaintiff and thereafter obtaining sub-license from Instagram shall be considered as invalid. And also the plaintiff argues that Mashable is not a beneficiary in any of the agreements between Instagram and the Plaintiff. But the Court herein differs from the arguments made by the Plaintiff and states that Mashable is not enforcing any of the agreements between Instagram and the Plaintiff, so they cannot be held liable for both arguments presented by the Plaintiff.
There was a second issue in the case pertaining to the liability of the Allege Ziff Davis’ (who is the owner of the Mashable Inc. and parent company) in Mashable’s alleged copyright infringement. The court ruled out that issue stating that Plaintiff failed to state a claim against Ziff Davis.
Looking at the issue from the Indian perspective, two things we can consider.
1) The validity of such browse-wrap contracts and clickwrap contracts in the Indian context.
2) The requirements of sub-licensing under the Copyright Act 1957 (“Act”).
1) Validity of e-contracts
The validity of e-contracts depends on the fact that whether the plaintiff party got enough opportunity to get through the terms of the contract or not. Understanding the definition of ‘Contract’ as per the Indian Contract Act, 1872, the electronic contracts and clickwrap contracts are still not covered under the definition of the Indian Contract Act.
Another point which needs to be considered here is that the contracts signed here are kind of adhesion contracts. An adhesion contract is drafted by one party, so the other party generally does not have a chance to negotiate or modify the terms of the contract. The party who drafted the contract is offering the other party a non-negotiable term, so it is on a “take-it-leave-it” basis. However, the onus of proving such contracts as adhesion contracts lies on the plaintiff. The Indian Contract Act is not considered as adequate and also section 16, 23 and 27 are not enough to protect the weaker party within the four corners of the Indian Contract Act. But as a matter of argument, it is to be noted that consensus ad idem and freedom of contract are predominantly missing in these types of contracts.
In the case of Ferro Alloys Corpn. Ltd. And Ors. vs A.P. State Electricity Board (1993), the Hon’ble Supreme Court extracted the definition of Adhesion contract from the judgment of In Central Inland Water Transport Corporation v. Brojo Nath Ganguly (1986) “adhesion contract” is defined quoting Black’s Law Dictionary, Fifth Edition, at page 38, as follows:
“Adhesion contract. Standardized contract form offered to consumers of goods and services on essentially ‘take it or leave it’ basis without affording consumer realistic opportunity to bargain and under such condition that consumers cannot obtain desired product or services except by acquiescing in forth contract. A distinctive feature of the adhesion contract is that the weaker party has no realistic choice as to its terms. Not every such contract is unconscionable.”
In the case of LIC India vs. Consumer Education and Research Centre (1995), the Supreme Court held that “In dotted line contracts there would be no occasion for a weaker party to bargain as to assume to have equal bargaining power. He has either to accept or leave the service or goods in terms of the dotted line contract. His option would be either to accept the unreasonable or unfair terms or forgo the service forever.”
Taking into consideration case laws and arguments made, we can state that the validity of such clickwrap contracts is questionable in India.
2) Sublicensing as per Copyright Act, 1957
In the Copyright Act, 1957 (“Act”) no direct provisions are there which say about sub-licensing. However, from the plain reading of Section 30, 30A, and 19 what we understand is a written agreement is important while transferring any kind of rights or ownership under copyright.
Applying this basic understanding to the present case, getting a sub-licensable right which is non-exclusive in nature actually does not give Instagram the right to share the copyright to the third party, until and unless there is an expressive agreement specifically for the transfer of copyright between the licensor and licensee.
For a matter of argument let’s consider that clickwrap agreements are enforceable as in some US cases they are held to be valid, but here, the question is not only limited to the validity of clickwrap agreements, rather it goes beyond, wherein the party is getting right to sublicense the creation of the creator without properly acknowledging the creator about the same.
However, still, the question remains the same, just by including a term ‘sub-licensable’ under the ‘Term of Use’ do that authorise social media platforms to grant the rights to the third party about which the creator was not fully aware of or to whom the creator was not at all directly obliged. Are we ready to give up our creations on social media platforms for the sake of business without proper acknowledgement to us, particularly when the agreement is on a ‘take it or leave it’ basis ?
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