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Ubiquity Of Copyright Infringement In Short-Video Platforms: A Bane For The Indian Music Label Industry

The advent of content generation online through varied platforms has led to redefining the structure of economies and modification in the global legal framework. India being the fastest-growing developing country is not far behind[1]. The aftermaths of the ban of Chinese applications TikTok, Helo, Likee, Bigo Live, etc opened a window of opportunity for the developers of alternate Indian short-video user-generated content (UGC) platforms such as Roposo, Triller, Takatak (MX Player), Josh, Mitron, Snack Video, Chingari, etc.

These applications have a mutual chief feature of being dependent on music to create content and keep users engaged. For this, they need licenses from numerous music labels. However, obtaining this license is an enduring task, and not being able to provide creators with music is a major disbenefit to user engagement so these platforms resort to illegal measures. Hence, A common streak of infringing copyrights at the hands of these platforms has been noted.

Understanding The Legal Term Copyright
One major law protecting the interests of music labels is The Copyright Act, 1957[2].

Copyright (or author's right) is a legal term for intangible property protection conferred on the creators of original works of authorship such as original literary works, dramatic, musical and artistic works, cinematographic films and sound recordings. There are certain rights vested in the owner of copyright by virte of Section 14[3] of the Act which are exercised only by the owner of the copyright.

The main objective of the copyright act in India is to protect the writer or artist from unlawful access to his/her material. To prevent all this or to prevent the violation of the rights of the creative authors, there are Copyright Societies[4] that are governed under the Copyright Act, 1957 to take care of the authors rights and all the things related to copyrighted material. The Copyright societies carry out the function [5]of granting license of the Copyright in the work for reproduction, performance or communication to public and have authority to check for infringement of the copyright and take appropriate legal action against these infringers.

Why Do Music Labels Need Copyrights?
From an Indian perspective on protection from copyright infringement[6],The author is predominantly protected in terms of his/her Economic and Moral Rights.

Music licenses from such aforementioned platforms yield huge revenues and have become meal tickets for music labels. Infringing copyrights deny them the economic rights conferred on them stemming out of the creation of original musical work[7].

In this way such platforms blatantly infringe copyrights and fall well within the, ambit of Section 51[8] of The Copyright Act,1957. Infact , There is no scope of defence that can be drawn from Section 52[9] of the abovementioned Act

Thus, short-video platforms act as a double-edged sword for the Indian music labels as it is undeniable that they also bring immense fame to the author and artist. They have a positive impact via wider dissemination of the underlying copyrighted lyrics, dialogues, and music, thereby hyping the markets for these songs.

Legal Resorts Taken Up By The Affected Music Labels
A copyright owner is unable to enjoy his rights unless the infringement of the same is strictly dealt with by the Courts.

Since their inception, these applications have recoursed to using music content belonging to music labels while giving a blind eye to the required valid license and permission.

In response to these unlawful acts, music labels have served legal notices to many of these applications and taken up legal actions which are civil and/or criminal in nature.

In the case Super Cassettes Industries Private Limited vs Relevant E Solutions Private Limited & Ors.[10] (T-Series vs Roposo) the former asserted that by the said services the defendants are exploiting the plaintiff's copyrighted work without any license by actively modifying the music and abetting.The matter was eventually settled between the parties.

In Saregama India Ltd. vs Chingarimedia Pvt. Ltd. & Anr.[11] the former filed a copyright infringement suit against Chingari. Same is the case in Zee Entertainment Enterprises Limited vs Tech4Billion Media Pvt Ltd[12] Where the former filed a copyright infringement suit against Chingari. Till now the parties have worked out an ad-interim arrangement. This will continue pending Interim Application.

Claims To Be Intermediaries And Entitlement To Fair Use
These short-video applications resort to intermediary[13] liability safeguards provided under Section 79[14] of the Information Technology Act, 2000. In Myspace Inc. v. Super Cassettes Industries Ltd (2016)[15], the Delhi High Court eased this requirement for instances of copyright infringement. The Delhi High Court held that receiving specific knowledge of the infringing works from the content owner in a manner provided by an intermediary will suffice the requirement of pertaining the holistic knowledge and a court order for the same would be needless.

In the case Tips Industries Limited vs Glance Digital Experience Pvt. Ltd. & Ors[16] no ad-interim relief could be sought by the plaintiff. However, the defendant has to On any intimation received from the plaintiff alleging infringement of its copyright, on receipt of the URLs in relation thereto, would have to remove/block access such contents within 36 hours in accordance with Rule 3(4)[17] of The IT Rules , 2011.

The exception of Fair use can not be applied even in cases where small snippets of recordings are used.

It is important to distinguish between platforms that actually come under the category of intermediary and can rightfully claim an exception from liability, and platforms which are wrongfully making use of copyright content under the false pretense of being intermediaries.

Conclusion
The article focuses on the kingpin issue in ownership of intellectual property i.e infringement of copyrights. Stricter implementation of the relevant laws namely The copyrights Act, 1957 and The Information Technology Act, 2000[18] is required to tackle this issue. The copyright societies need to enforce policies efficaciously. The rights of authors have to be respected to build a cohesive and synergetic environment.

The article sheds light on the legal conundrum of infringement liability versus safe harbor provision. It is necessary for short-video platforms to establish themselves as intermediaries under the IT act and prove that all conditions listed under Section 79[19] of the act have been fulfilled to be exempted from liability. One can not claim intermediary liability or have easy access to the fair use exception to commit unlawful and unjust activities.

Awareness should built around the legal risks of infringing copyrights for a better user experience. Stringent laws need to be evoked by the concerned authorities in order to prevent businesses that claim to be commercially sound from overstepping their rights and depriving music owners of theirs.

Table of Case Laws:
  1. Super Cassettes Industries Private Limited vs Relevant E Solutions Private Limited & Ors.[20]
  2. Tips Industries Limited vs Glance Digital Experience Pvt. Ltd. & Ors
  3. Saregama India Ltd. vs Chingarimedia Pvt. Ltd. & Anr.[21]
  4. Zee Entertainment Enterprises Limited vs Tech4Billion Media Pvt Ltd[22]
  5. Myspace Inc. v. Super Cassettes Industries Ltd (2016)[23]

End-Notes:
  1. Trade and Development Report 2021, UNCTAD
  2. https://copyright.gov.in/documents/copyrightrules1957.pdf
  3. The Copyrights Act,1957 , Section 14. Meaning of copyright
    For the purposes of this Act, copyright means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:
    1. In the case of a literary, dramatic or musical work, not being a computer programme:
      1. to reproduce the work in any material form including the storing of it in any medium by electronic means;
      2. to issue copies of the work to the public not being copies already in circulation;
      3. to perform the work in public, or communicate it to the public;
      4. to make any cinematograph film or sound recording in respect of the work;
      5. to make any translation of the work;
      6. to make any adaptation of the work;
      7. to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);
    2. in the case of a computer programme:
      1. to do any of the acts specified in clause (a);
      2. to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programmer:
        Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.]
    3. in the case of an artistic work:
      1. to reproduce the work in any material form including:
        1. the storing of it in any medium by electronic or other means; or
        2. depiction in three-dimensions of a two-dimensional work; or
        3. depiction in two-dimensions of a three-dimensional work;]
    4. in the case of a cinematograph film:
      1. to make a copy of the film, including:
        1. a photograph of any image forming part thereof; or
        2. storing of it in any medium by electronic or other means;]
      2. to sell or give on commercial rental or offer for sale or for such rental, any copy of the film.]
      3. to communicate the film to the public;
    5. in the case of a sound recording:
      1. to make any other sound recording embodying it 6[including storing of it in any medium by electronic or other means];
      2. to sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording;]
      3. to communicate the sound recording to the public.
  4. The Copyrights Act , 1957 Section 2. Interpretation
    In this Act, unlesst the context otherwise requires,-(ffd) "copyright society" means a society registered under sub-section (3) of section 33;]
  5. The Copyrights Act , 1957 , Section 34 Administration of rights of owner by copyright society
    1. Subject to such conditions as may be prescribed:
      1. a copyright society may accept from an 1 [author and other owners of right] exclusive authorisation to administer any right in any work by issue of licences or collection of licence fees or both; and
      2. an 1 [author and other owners of right] shall have the right to withdraw such authorisation without prejudice to the rights of the copyright society under any contract.
    2. It shall be competent for a copyright society to enter into agreement with any foreign society or organisation administering rights corresponding to rights under this Act, to entrust to such foreign society or organisation the administration in any foreign country of rights administered by the said copyright society in India, or for administering in India the rights administered in a foreign country by such foreign society or organisation: Provided that no such society or organisation shall permit any discrimination in regard to the terms of licence or the distribution of fees collected between rights in Indian and other works.
    3. Subject to such conditions as may be prescribed, a copyright society may:
      1. issue licences under section 30 in respect of any rights under this Act;
      2. collect fees in pursuance of such licences;
      3. distribute such fees among 1 [author and other owners of right] after making deductions for its own expenses;
      4. perform any other functions consistent with the provisions of section 35
  6. The Copyrights Act , 1957 Section 2.[(m) Interpretation.-
    "infringing copy" means- (i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film; (ii) in relation to a cinematographic film, a copy of the film made on any medium by any means; (iii)in relation to a sound recording, any other recording embodying the same sound recording, made by any means; (iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer's right subsists under the provisions of this Act, the sound recording or a cinematographic film of such programme or performance, if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act;]
  7. The Copyrights Act , 1957 Section 2.[(p) Interpretation.- In this Act, unlessthe context otherwise requires,-
    "musical work" means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music;]
  8. The Copyrights Act , 1957 Section 51. When copyright infringed.- Copyright in a work shall be deemed to be infringed- (a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act- (i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or 1 [(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or] (b) when any person- (i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or (ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or (iii) by way of trade exhibits in public, or (iv) imports 2*** into India, any infringing copies of the work: 3 [Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer.] Explanation.- For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an "infringing copy".
  9. The Copyrights Act , 1957 Section 52.(2) Certain acts not to be infringement of copyright.-
    The provisions of sub-section (1) shall apply to the doing of any act in relation to the translation of a literary, dramatic or musical work or the adaptation of a literary, dramatic, musical or artistic work as they apply in relation to the work itself.
  10. CS(COMM) 347/2020
  11. CS(COMM) 457/2020, I.A. 9435/2020
  12. COMMERCIAL IP SUIT (L) NO. 1926 OF 2021
  13. The Information Technology Act, 2000.Section 2(w)
    "intermediary" with respect to any particular electronic message means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message;
  14. The Information Technology Act ,2000 Section 79. Network service providers not to be liable in certain cases-
    For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention. Explanation.-For the purposes of this section, - (a) "network service provider" means an intermediary; (b) "third party information" means any information dealt with by a network service provider in his capacity as an intermediary;
  15. C.M. APPL.20174/2011
  16. CS(COMM) 561/2020
  17. The Information Technology (Intermediaries' Guidelines) Rules, 2011 , Rule 3(4)
    The intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2). Further the intermediary shall preserve such information and associated records for at least ninety days for investigation purposes,
  18. https://eprocure.gov.in/cppp/rulesandprocs/kbadqkdlcswfjdelrquehwuxcfmijmuixngudufgbuubgubfugbububjxcgfvsbdihbgfGhdfgFHytyhRtMjk4NzY=
  19. The Information Technology Act, 2000 Section 79. Network service providers not to be liable in certain cases-
    For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention. Explanation.-For the purposes of this section, - (a) "network service provider" means an intermediary; (b) "third party information" means any information dealt with by a network service provider in his capacity as an intermediary;
  20. CS(COMM) 347/2020
  21. CS(COMM) 457/2020, I.A. 9435/2020
  22. COMMERCIAL IP SUIT (L) NO. 1926 OF 2021
  23. C.M. APPL.20174/2011
Written By:
  1. Navin Kumar Jaggi
  2. Tanvi Chhabra

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