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Protection of digital content on social media: An IP perspective

We get to live in a time where, we get to use social media as a tool - Gigi Hadid.

In the contemporary world, the most widely used source of information is social media platforms. They provide online content in various forms, including pictures, literature, videos, etc. People post their work on social media to gain recognition and attention from general public. The term coined for people who post their work online is, content creators'. Anything and everything which is online, can be duplicated by any other person.

There is a famous misunderstanding among people that, everything which is online, is a part of public domain. It is not true to tag every online content as belonging to public domain. The original creator of any work has an exclusive right over the creation. It is important to protect the rights of any online content creator, which is provided under the sphere of copyright law. It is sine qua non for the copyright system of a country to strike a balance between the interest of the copyright owner and the reasonable demand of the organized society.

Any picture, video, blog, literary work published on any social media platform is a copyrighted work, and cannot be used by any other person without permission, license or attribution. If indeed the work is qualifying, for instance, tweets on Twitter, the owner of the work retains the copyright when a post of creative work is published by anybody on social media.

Without the permission of the original owner, no person can use his work and the platform does not claim ownership of it. There is a caveat: by uploading on a site like YouTube or Twitter, the owner is accepting to the site's terms of service, which typically provide the site permission to utilize the work. Equally significantly, the site's operator is enabling other people to contribute their work.[1]

Publishing a work on social media platform does not provide anyone permission to use it without credit. If a person creates a meme and posts it on Twitter, for instance, several people can retweet it. Nevertheless, if someone just replicates the meme with no acknowledgment and publishes the same on his or her page or maybe some other place then the platform itself, it is not necessarily considered fair dealing and it is highly probable that it is in violation of the platform's terms and conditions.

It is important to understand the nuances of copyright law, to understand the role of copyright in protection of online content. The objective of copyright law is mainly two folded. Firstly, the copyright law is developed by the nations to assure authors, composers, artists, designers and other creative people as well as the film producers and producers of sound recordings, who risk their capital in putting their works before the public, the right to their original expression.

This is done by giving the author, or in some cases his employer, certain exclusive rights to enjoy the benefits of the created subject matter for a limited period of time. The exclusive rights are granted to copyright owner in his work, so that he could exploit his work to the exclusion of others for a limited period of time. Secondly, the copyright law encourages others to build freely upon the ideas and information conveyed by a work.[2]

It is important to note that there is no compulsion on registration of copyright. Copyright is established from the moment the work is created, in the original author of the work. Normally, any unauthorized use of copyright in a work amount to infringement of copyright. However, some unauthorized use of copyright work for some specific reasons are allowed by the law and are not considered as infringement. It is provided by the doctrine of fair-dealing under copyright. Some of the work for which use of copyright does not amounts to infringement include, for research and private study, criticism and review, reporting of current events, judicial proceeding etc.

Work posted on social media sites such as Instagram, tweeter, Facebook, YouTube, is protected under copyright, and cannot be used without permission. In a case against Gigi Hadid, a famous fashion icon, in 2017, Peter Cepeda v. Jelena Noura Gigi� Hadid and IMG Worldwide, wherein she was sued by a photographer after posting a photo of herself on her Instagram and Twitter accounts. According to the since-settled lawsuit filed by photographer Peter Cepeda in the U.S. District Court for the Eastern District of Virginia, the famous model posted a photo of herself  which Cepeda took and in which he holds exclusive rights  amounting to an act of infringement [that] was wilful and intentional, in disregard of and with indifference to the rights of Cepeda.[3]

Jennifer Lopez, an actress and singer, is the latest celebrity to be sued for copyright infringement. Photographer Steve Sands is suing Lopez and her production business for over $150,000 in damages, alleging that Lopez shared a shot taken by Sands on Instagram. Lopez and her production firm, according to Sands, did not get a licence from Sands or obtain authorization from Sands to upload the image.[4]

Before sharing photographs available on the internet that they do not hold the copyright rights to, media platforms administrators, celebrities, and users should practice prudence. A simple credit or attribution or a little licencing fee also can avert weeks of judicial wrangling down the road.

It is important to note that every social media platform has its Terms of Service or IP Policy. Every person using the social media platform, agrees to their IP Policy. It is noteworthy that every social media policy contains a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content posts by the user on the platform. This is a huge right which has to be given up by every user in-order to use the platform. This right not only allows the social media site to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media but also sub-license the original work of author without any license fee.

Intellectual Property Policies Of Popular Social Media Platforms Are:

  1. Twitter[5]
    You retain your rights to any Content you submit, post or display on or through the Services. What's yours is yours " you own your Content (and your incorporated audio, photos and videos are considered part of the Content).

    By submitting, posting or displaying Content on or through the Services, you grant us 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.

    Such additional uses by Twitter, or other companies, organizations or individuals, is made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services as the use of the Services by you is hereby agreed as being sufficient compensation for the Content and grant of rights herein.�
     
  2. Instagram [6]
    Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the Instagram Services. By displaying or publishing ("posting") any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly ("private") will not be distributed outside the Instagram Services.
     
  3. Facebook [7]
    Specifically, when you share, post or upload content that is covered by intellectual property rights on or in connection with our Products, you grant us a non-exclusive, transferable, sub-licensable, royalty-free and worldwide licence to host, use, distribute, modify, run, copy, publicly perform or display, translate and create derivative works of your content. 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 Meta Products you use. This licence will end when your content is deleted from our systems.

Generally said, the author retains the work that is shared on social media, but has granted each site permission to use it according to their terms of service. These licences range somewhat from one another, but they all provide the social media platform permission to utilise copyrighted content in any way that the platform deems suitable.

They may conceivably benefit from it economically and perhaps even sell or sublicense their licence to a third person, and because each licence says that it is "royalty free," the author would never get any of the economic gain. However, there is a very little chance that any social networking site will sell copies of a person's copyrighted photographs, videos, or even text material.

However, they can use the copyrighted work for their promotion, for instance, a person's copyrighted work posted on Instagram reels, can be used by the site for a television advertisement of Instagram, and because they hold a royalty-free license and sub-license, the author cannot claim copyright infringement.

In a famous case of, Jack Schroeder and Britni Sumida v. Volvo Group North America, LLC and Volvo Car USA LLC, Volvo is accused of breach of copyright, unfair business practices, fraudulent advertising, and misuse of the model's image in a lawsuit filed by a photographer and the woman he photographed. The picture in question was a Volvo Instagram Story that included photos of the model standing with one of the company's vehicles, as well as a link to Volvo's website.

Volvo contends that by publishing the photographs publicly and tagging the Volvo account in the postings, the images were available for re-sharing and a licence was inferred, according to a move to quash the lawsuits. The model has no right against Volvo's redistribution of the photos, according to their motion, and the model agreed to be shot with the automobile and have the images disseminated.[8]

A lawyer for photographer Jack Schroeder and model Britni Sumida, Jeffrey Gluck, echoed a caution from many others about the dangers of presuming unfettered use of publicly uploaded content. "Volvo's assertion that they may supposedly grab and exploit ANY publicly uploaded photo on Instagram is dangerous, scary, and incorrect," Gluck told The Hollywood Reporter in a statement. "The whole worldwide artistic community must be on heightened alert, and Instagram must stand up right away," says the author. Millions of people's creative rights and careers are now in jeopardy."

Facebook representative Stephanie Otway provided comprehensive explanations on the terms of service. "Users grant us a non-exclusive licence when they publish material under our rules, allowing us to sub-license content resha red on Instagram (subject to someone's preferences)." We do not extend this sublicense to platforms other than Instagram, and third parties must get the required rights from applicable rights holders in line with our standards."[9]

Therefore, it is important for any content creator for protection of their copyrighted work, to read the Terms of Service thoroughly. It is not only required that the author should be vigilant from a copyright infringement by a third party but by the social media platform also.

With the advent of internet and the birth of social media the opportunity for the copying of content (accidentally or otherwise) has become much more prevalent. Earlier it was authors, artists, musicians and other creative professionals who had to worry about their content being copied but now it's also the majority of companies having websites or any kind of online presence.

This has invariably increased the probability of infringement of the content on the internet. However, it is difficult to totally avoid such infringement, yet measures can be taken to deter and decrease these copycats. After all, it's disappointing assuming you put the work and effort into creating, delivering and distributing your content, just for somebody to duplicate or reuse it.[10]

Here's How You Can Protect Your Digital Content On Social Media:

  1. Copyright Protection:
    Protect your work of authorship under copyright. A copyright is a form of intellectual property (IP) which protects the original works of its creators and allows for a clear proof of ownership in the eyes of the law if an infringement case is taken to court. Copyrights are signified by the © symbol, the phrase all rights reserved' or both at the bottom of a webpage. Such display of protection should be enough to dissuade offenders from committing an infringement. Moreover, to publish in the US you can register at copyright.gov and can use Google Alerts to find websites that have copied or allegedly borrowed your content.
     
  2. Use of Watermarks:
    Watermarking a protected innovation or any creation permits the free sharing of any digital content, while binding the artefact with its original creator. This means that when an image is copied, with the help of the watermark, it can easily be distinguished as your property. Whenever the creation of any digital content is misattributed, in that case it can be claimed by the original creator who is the rightful owner of the artefact. There are multiple watermarking software products available on the internet through which any content creator can watermark their content.
     
  3. Use of portals/ Restricting Access:
    Using a password protected portal will only grant access for the clients or subscribers whilst restricting access to other website users. This step can prevent the loss of sensitive information to competitors and other groups who aim to take and copy your unique content and approach.
     
  4. Be aware and keep a watch:
    Keep checking and reviewing your competitors' web pages and social media handles regularly to check for any areas of similarity or straight plagiarism. Keep a watch on who all are blatantly copying your content. Reviewing competitor's online presence will also help you in recognising what you should change to keep your content fresh and innovative.
     
  5. Seek Legal Advice:
    Even after following all these above-mentioned points, should you find yourself in a situation of infringement of your intellectual property do not shy away from seeking legal help. Intellectual Property law regime is capable of stringently holding such infringers liable for their actions. Through proper legal guidance and by following a proper legal course you can reclaim your content and hold the infringing party responsible for their actions.

Nowadays, it seems like everywhere you look, someone is announcing the sale of an NFT, especially in the art and entertainment worlds. After decades of revenue loss due to piracy and streaming, followed by a year without income from touring and live performance, it's easy to see how the possibility to command vast sums for a digital file containing art, music, or film sounds is immensely enticing.

The impact of NFTs on intellectual property protection for influencers and content providers has recently gotten a lot of attention. Non-fungible tokens, or NFTs, are digital certifications of authenticity incorporated in the blockchain technology, making them suitable for intangible goods such as artwork, music, films, and graphics (as well as other digital content). Whether an NFT is their own original work or one that incorporates another creator's intellectual work, content producers are still protected by copyright law.

When singer-songwriter Stevie Nicks prevented TikTok phenomenon 420Doggface208 from using the Fleetwood Mac song "Dreams" in his popular skateboarding video as part of an NFT sale[11], it made headlines in lieu of how beneficial it is. This also serves as a reminder to always do your due diligence to ensure your creations do not infringe upon another's copyright. You also want to ensure your online creations are protected by copyright or trademark law so others cannot steal your original works.

The most ideal way to safeguard your business is getting client authorization prior to posting a picture or seeing as an allowed to-utilize picture on the web. There are a few different systems to safeguard your business that include altering pictures or crediting a fair-use guard notwithstanding replicating and posting a picture.

Both these angles are difficult to characterize on an industry-wide premise and will just become possibly the most important factor in unambiguous occurrences. Copyright infringement is difficult to reduce and apply to all cases - subtleties of each case will direct obligation and determine liability and identify how a business is in danger. You can more deeply study infringement to aware yourself as a business owner and a consumer as well. The primary concern is, in spite of how simple it very well might be, copyright Infringement is a type of robbery.

End-Notes:
  1. Maaz Akhtar Hashmi, Social Media and Copyright: Everything you need to know about it, Ipleaders, April 13 2020
    https://blog.ipleaders.in/social-media-copyright/
  2. V.K. Ahuja, Law Relating to Intellectual Property Rights, Lexis Nexis, Third Edition 2017
  3. TFL, Gigi Hadid is Being Sued for The Third Time for Posting Another's Photo on Her Instagram, September 13, 2019
    https://www.thefashionlaw.com/gigi-hadid-is-being-sued-for-a-third-time-for-posting-anothers-photo-on-her-instagram/
  4. Raymond Law Group LLC, Jennifer Lopez sued for copyright infringement, May 1 2020
    https://www.lexology.com/library/detail.aspx?g=1040dc75-6da2-46ca-9ab0-d14eb3ca7676
  5. Twitter Terms of Service https://twitter.com/tos?lang=en
  6. Instagram Terms of Service https://www.instagram.com/about/legal/terms/before-january-19-2013/
  7. Facebook Terms of Service https://www.facebook.com/legal/terms
  8. Nicholas Rozansky, Volvo Instagram Lawsuit Exposes Social Media Copyright Nuances, Forbes, September 3 2020
    https://www.forbes.com/sites/legalentertainment/2020/09/03/volvo-instagram-lawsuit-exposes-social-media-copyright-nuances/?sh=bc603534f882
  9. Id
  10. Matthew Hives, One Stop IP, Top tips for protecting your digital content, August 20(2016)
  11. IP for Social Media Influencers and Content Creators, Michelson Institute of Intellectual property (Jun 22, 2021)
    https://michelsonip.com/how-to-protect-your-digital-content/


Award Winning Article Is Written By: Ms.Divyanshi Maheshwari & Mr.Annany Mamgain
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