The digital revolution in the field of entertainment industry has dramatically changed the creative panorama and the dominance of tech giants like Amazon Prime, Facebook, Netflix & Spotify is the source of growing concern. Such Platforms create a lot of value by organizing the content market. They are the new intermediaries. Also these new intermediaries (including host of smaller sites streaming localized content, such as Iroko TV etc.) have rapidly gathered favor with audiences. Online intermediary liability has become controversial in relation to IP Law and this expansion is also affecting the creative rights of the creator and performer. With the advent of Internet and higher speed Internet connections which allows on-demand access to hi-definition versions and increasing screen quality of hand-held devices such as mobile, tablet etc. the digital environment has now become most approached platform for film distribution. These online intermediaries are based on three revenue models as follows:
- Pay per View (PPV)/ Video-On-Demand (VOD)/ Download to Own. For example, DailyMotion
- Ad-Supported, where the viewer must watch advertisements as payment to watch the movies. For example videos on Youtube.
- Subscriptions, where a flat monthly fee or annually fee is paid for unlimited viewing of a set of films. For example, Netflix, Amazon prime or Hotstar VIP.
The general rule is that the Licensor that is the company that has a deal with a VOD service such as iTunes, Amazon, Hulu or DailyMotion to provide films of the film to the Internet. Most international distributors demand that licensors should have all digital rights including Internet and all forms of VOD which includes download, streaming and Internet protocol television (IPTV).
With the revolution in digital media technology and the Internet, the industry is increasingly sharing and spreading through websites that allow the user to move, listen to and view works protected by copyright. The current legal framework for the protection of copyrighted content on digital networks is not robust and India has still not resolved the so-called copyright issues. However, Indian courts have given some tough judgments on copyright infringers online. One such landmark case was Super Cassettes Industries Ltd. v. Myspace Inc. & Anr. In this case the T-series received a temporary injunction against YouTube and Google for viewing copyrighted content on the T-series without permission or authorization. They claimed that these websites benefited financially from hosting such content without paying royalties to copyright owners. Further, Section 79 of Information Technology Act, 2000 exempts websites from liability for infringement of user-generated content. However, if the website has a filtering mechanism or some other type of content that it hosts, it will not be free from liability. The Delhi High Court held that social networking sites (SNS) such as YouTube, MySpace, etc can be held liable for copyright infringement due to fake content published on these websites, if it is shown that these intermediaries controlled the content displayed, given the opportunity to do due diligence to prevent it from crime and these forgery activities Benefited. In such cases, a defense that an intermediary is not responsible for the activities of third parties on the website is also not useful, as Section 79 of the IT law should be read along with Section 81. The IT law, which explicitly states that provisions of the IT law can eliminate other laws currently in force, cannot restrict the owner's rights under the law of copyright.
Quoting Reasoning and decision of Super Cassettes Industries Ltd. v. Myspace Inc. & Anr. from judgment for readers reference:
MySpace argues that several million videos are uploaded on its website and it is not possible for it to monitor all data hosted on its website. Both under the Copyright Act and the IT Act, "actual" knowledge and not just suspicion is essential to fasten liability. Merely apprehension of unlawful content on the website and embargos placed through user agreements do imply its knowledge of infringement. The provision for safeguard devices (the Rights Management Tool, Notice and Take Down provision, Take Down Stay Down tool and Hash Block Filter) does not imply actual knowledge of infringement. MySpace is aggrieved by the observation that it permitted use of its place for profit and had knowledge of copyright violations and argues that video modification or for advertisement insertion was through automated processes and did not suffer manual interference. The limited license obtained was to perform this automated task of modifying and inserting advertisements to the video: it was from the content up-loader-not SCIL. All these show that it did not possess "actual knowledge" nor have "reason to believe" that uploaded content infringed SCIL's rights. Clause 6.1 of MySpace's agreement with its users is relied on to say that it never claims any ownership of content; it clearly stated also that the entity which posts on MySpace's portal is with understanding that the limited license given to it is for all purposes and that the content owner would continue having rights and by posting Content on, "through or in connection with the Myspace Services" only limited license is granted to MySpace to display, reproduce, transmit, publicly perform it. SCIL, however, imputes knowledge to MySpace urging that its business model depends on inviting people to share and upload content on its website and then strategically inserting advertisements next to content, contributing to its revenue. Users do not profit from uploading. It is argued that MySpace stores permanently such works on its servers and placing advertisements and modifying data it proves that MySpace can control data shared on its website. It argues exercise of such control an element of knowledge surely exists. By providing a free platform for users to upload/ download/ stream/ view videos along with other interactive features like commenting and "liking" videos the appellant induces users to an attractive website and unlawfully enriches itself. In the circumstances, the learned Single Judge was correct in holding that the appellant had knowledge that the content on its website was infringing. SCIL states that it notified that its lists of titles owned; MySpace also dealt previously with SCIL and was therefore aware that songs likely to be uploaded did not in likelihood belong to its users or those uploading them. The existence of an India office with India centric operations, which facilitate alteration of content by insertion of advertisements etc. points to knowledge.
Decision:
- The plaintiff Super Cassettes shall provide an updated catalogue of "specific" works in which it holds copyright along with the location/ URL of such work on the appellant Myspace's website to the appellant as and when SCIL detects infringement.
- On receiving such notice from the plaintiff SCIL, the appellant/MySpace shall within 36 hours remove/ block access to such content, in accordance with Rule 3 (4) of the Intermediary Guidelines Rules of 2011.
- MySpace shall also keep an account of all such content removed pursuant to such requests as well as other details such as the number of viewings (wherever mechanisms exist to track such action) of such content, till it is removed, the advertisement revenue earned from it (proportionately) etc to enable calculation of damages, at the trial stage.
The appeal was allowed in the above terms.
Waiting for part two.
ReplyDelete