Lokesh Vyas and Harshil Dureja
Contextualisation : A Need for Revision?
On 29 June, 2020, India banned 59 Chinese apps including Tiktok, citing that these platforms are “…engaged in activities which are prejudicial to sovereignty and integrity of India, defence of India, security of state and public order.” The ban came amid continuing tensions on the border between India and China.[1] After the ban on Tiktok, Bytedance, the Beijing based company which owns Tiktok, is planning to modify its privacy policies and is also likely to move its base out of China.[2] Interestingly, even if Tiktok decides to change its privacy policy, there would still remain a number of clauses in its Terms of Service (‘ToS’) which are violative of the laws pertaining to copyright laws in India. Through this article, the authors have discussed some provision of Copyright Act,1957 dealing with licensing and analyzed their applicability on the clauses in the ToS of social media platforms.
Interestingly, every original content created/uploaded on the social media is a work under copyright for which the user is an author and gets rights under Section 14.[3] Here, originality is something which origins from the author.[4] An original work is created independently, from the skill and judgment of the author.[5] It is pertinent to note that in today’s day and age, social media influencers such as Lilly Singh, Bhuvan Bam, and many others have a follower base running into millions, making them as popular and sometimes even more so than some of the Bollywood celebrities on social media. It is important to understand that these influencers have their livelihood dependent upon the content they create on social media; be it from brand deals, licensing their content for social media marketing, or monetising their content in other ways. In such circumstances, it becomes imperative to scrutinise the licensing terms of such social media platforms to make sure they align with India’s IP Laws and are therefore fair for content creators.
UGC and Terms of Use : Who owns the Content?
All social media platforms thrive on user-generated content (‘UGC’) which refers to the content created by users on social media, such as audio visual content and blogs, which are publicly available to other consumers and end-users.[6] Ownership of such content has often been a controversial debate.[7] The advent of meme culture, vines, and graphic interchange formats, (“GIFs”) has ushered in a creative cult on social media and become an inescapable part of it. However, whether their creators have any protection over their work is a nettlesome question of current copyright law. Conceptually, such content is copyrightable work under Section 13 of Copyright Act, 1957 (subject to the originality) and the creator is the author and first owner.[8] Pertinently, the same is also acknowledged by social media platforms in their user agreements which declare that the intellectual property (‘IP’) rights over the content remain with the user. However, the presence of the content on the social media enables these platforms to claim unfettered licensing rights over the content which is de jure an intellectual property of users (licensing rights are those rights which enable one to transfer IP rights to a third person.) This can be fathomed from the binding nature of ToS (which includes a licensing agreement) that every user enters into while joining any social media platform. Notably, such agreements come under the category of clickwrap agreements which requires the user to agree to terms and conditions before using a website or completing an installation or using a social media platform. These agreements typically present the terms and conditions followed by a check box with the words “I agree” or “I accept” that the user must click as held in Feldman v. Google, Inc.[9]
Notably, in ToS, the social media platform explicitly acknowledges the creator’s ownership over the content. However, even after such acknowledgment of IP rights, a user is contractually obligated to license (which ironically covers everything) its content to these platforms. These licenses are very lengthy and complex and entails several astonishing conditions. As a result, many users do not read them. Following is an example to demonstrate such tantalising terms of Facebook which states: –
“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 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.”[10]
Interestingly, it is not only Facebook that has such a policy. Twitter,[11] Tiktok[12] Instagram,[13] Snapchat, Pinterest,[14] WeChat,[15] ShareChat,[16] WhatsApp,[17] etc. also have a similar policy for content creators. Undoubtedly, this licensing is important for the smooth functioning of the platform and improving the services for the user. However, their unnecessarily broad framing makes them contestable.
In order to establish the validity of such licensing agreements with respect to copyright, these terms are to be tested on the anvil of Section 30 and 30A of the Copyright Act, 1957 which govern the license of copyright.[18]
Section 30A and its Implications
It is worth mentioning that Section 30A of the Copyright Act requires the abidance of Sections 19 and 19A for the purpose of a license under Section 30. Section 19 and Section 19A are germane to mode of assignment and the dispute with respect to assignment respectively.
A. Undefined Duration and the Territorial Extent of Agreement
Social media agreements do not explicitly mention the duration or the territorial extent of the license and are generally applicable as long as the content is available on the platform or the platform is used, thus, implying the perpetual licensing of IP and granting rights beyond the protection of work. However, this does not stand true on Section 19(2) which explicitly mandates the parties to clarify the duration and the territorial extent of the agreement. Reliance can be placed on Ketcham v. Hall Syndicate, Inc.,[19] which held that “contracts which are vague as to their duration generally will not be construed to provide for perpetual performance.” Similarly, in Chapman v. NYS Division for Youth,[20] the court held that if the contract does not explicitly grant a perpetual license, then it should not be construed so. In the absence of such clarification, this assignment automatically becomes five years by the virtue of Section 19(5). Section 19(6) further states that in case territorial extent of such assignment is not specified, it shall be presumed to extend within India. It has been explicitly stated by the Delhi High Court in the case of Pine labs vs Gemalto Terminals, that in case no duration or territorial extent is provided in agreement or any assignment deed, provisions of Section 19(5) and (6) of Copyright would be attracted.[21] These judgments remove the scope of vagueness in the contract which is deliberately embedded in social media agreements.
Notably, for some social media platforms such as WeChat, WhatsApp, and Snapchat, their ToS claim rights even after the user stops using the platform. Such eternal licenses are problematic for two reasons: firstly, they obfuscate the specificity requirement of duration under Section 19; secondly, they overlook the time-specific nature of copyright law, thus, further underscoring the contestability of these agreements.
B. Royalty-free License and Post-2012 Amendment
The royalty free nature of social media agreements, which means no amount will be paid to the content creator for its work, further obfuscate the objective of 2012 Amendment. Such non-payment of royalty is hit by Section 19(3) which states “The assignment of copyright in any work shall also specify the amount of [royalty and any other consideration payable] …”.[22] Thus, the provision mandates the payment of royalty with “other consideration”. Here, the assignee or licensee does not have an option to forgo royalty and limit the agreement to other consideration (either monetary or non-monetary). This situation arose after the Copyright Amendment Act, 2012.
Contrastingly, before the 2012 Amendment, the situation was different and present social media agreements could be less contestable. Pre-amendment Section 19(3) stated “the assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author…” This modification in Section 19(3) from “royalty payable, if any”, to “royalty and any other consideration payable” accentuates the intention of the legislature to create an inalienable right of royalty for all copyrightable works. Here, it might be contended that ‘inalienable right’ is only limited to cinematography and sound recoding works by the virtue of Section 18.[23] However, it blinkers the meaning of royalty which in its real sense includes any payment applicable to author for its work, therefore, should be construed as per the industry practice depending upon the facts of the case.[24] The same can be understood from Explanation 2 to Sec 9(1)(vi) of the Income Tax, 1961 which considers royalty as any consideration paid for the transfer of all or any right (including the granting of a license).[25] Also, Article 12(3) of the Income Tax Treaty also defines royalty as a payment for the use of copyright.
Given this analogy, even if the service of social media is regarded as valid non-monetary consideration’, it still falls foul on copyright law owing to the additional requirement of royalty in Section 19(3). Hence, the validity of such agreements can be contested by the user. Although judgments which specifically answer whether such royalties can be waived are sparse, however, under contract law a party can waive its right only when it is not in contravention with public policy. In the present scenario, waiving of the right does not seem to be in consonance with public policy owing to direct attack of the 2012 amendment.
On a tangential note, another monstrous term of TikTok’s ToS is “Specific Rules for Musical Works and for Recording Artists” which roundly contravenes Section 19(8) of the Copyright Act.[26] Notably, Section 19(8) clarifies that the assignment of copyright cannot be contrary to the terms and conditions of the rights already assigned to a copyright society in which the author of the work is a member. However, as per TikTok “If you are a composer or author of a musical work and are affiliated with a PRO, then you must notify your PRO of the royalty-free license you grant through these Terms in your user content to us. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations…”[27]
In India, there are separate contracts between copyright societies and artists for the collection of royalties and granting licenses.[28] Thus, such societies are authorized to act on behalf of the artists. However, applying the above mentioned policy to an Indian author would mean intervening the already existing relationship of a copyright society and the author thereby immunising TikTok from any claim of society. These blatant contradictions between the agreement and the Act not only question the validity of the such agreements but also highlight the intention of such platforms to pre-empt any potential claim against them.
Concluding Remarks
This article is written to unfurl a dialogue on some of the preposterous terms of the widely used social media platforms such as Tiktok, Twitter, WhatsApp, Instagram and Facebook to name a few. It is high time that we protect our rights over our content. We understand that some of these terms are important for the smooth functioning of these social media platforms and that these platforms would most likely refrain from misusing our content due to a fear of losing public credibility but a bigger question here is whether we want to give these platforms the power and chance to so in the first place. Another reason behind discussing the above mentioned terms is to bring to light some of the unfair clauses which affect content creators on these platforms directly because the user agreements are very broad and cover many possible usages of the content without any compensation to the user. These agreements are uncertain with respect to duration and lack mutuality.
The authors, Lokesh Vyas and Harshil Dureja, are currently law students at Institute of Law, Nirma University and Government Law College, Mumbai.
[1] The Hindu, Government bans 59 apps including China-based TikTok, WeChat, June 29, 2020 available at https://www.thehindu.com/news/national/govt-bans-59-apps-including-tiktok-wechat/article31947445.ece (Last visited on August 4, 2020)
The Economic Times, ByteDance may move TikTok headquarters out of China as India bans app, July 10, 2020 available at https://economictimes.indiatimes.com/tech/internet/bytedance-may-move-tiktok-headquarters-out-of-china-as-india-bans-app/articleshow/76880204.cms?from=mdr (Last visited on July 20, 2020).
[3] The Copyright Act, 1957, § 14.
[4] Burrow-Giles Lithographic co. v. Sarony 111 u.s. 53 (1884).
[5] Eastern Book Company and Ors. v. D.B. Modak and Anr. (2008) 1 SCC 1.
[6] Jay Kang, What Is User Generated Content And How It Is Relevant?, March 6, 2019 available at https://www.business2community.com/content-marketing/what-is-user-generated-content-and-how-it-is-relevant-02175516 Last visited on August 02, 2020).
[7]Rolling Stone, Frank Ocean T-Shirt at Center of Debate Over Tweet Copyright, August 2, 2017 available at https://www.rollingstone.com/music/music-news/frank-ocean-t-shirt-at-center-of-debate-over-tweet-copyright-200235/ (Last visited on July 20, 2020).
[8] The Copyright Act, 1957, §17.
[9] Feldman v. Google, Inc. – 513 F. Supp. 2d 229, 238 (E.D. Pa. 2007).
[10] Facebook, Terms of Service, July 18, 2020, available at https://www.facebook.com/terms.php (Last visited on July 19, 2020).
[11] Twitter, Twitter Terms of Service, July 18, 2020, available at https://twitter.com/en/tos (Last visited on July 19, 2020).
[12] TikTok, Terms of Service, July 18, 2020, available at https://www.tiktok.com/legal/terms-of-use?lang=en (Last visited on July 19, 2020).
[13] Instagram, Terms of Use, July 18, 2020, available at https://help.instagram.com/581066165581870 (Last visited on July 19, 2020).
[14] Snapchat, Snap Inc. Terms of Service, July 17, 2020, available at https://www.snap.com/en-US/terms (Last visited on July 19, 2020).
[15] WeChat, Wechat – Terms of Service, July 17, 2020 https://www.wechat.com/en/service_terms.html (Last visited on July 19, 2020).
[16] ShareChat, ShareChat Terms of Use, July 17, 2020, available at https://privacy.sharechat.com (Last visited on July 19, 2020).
[17]WhatsApp, WhatsApp Terms of Service, July 17, 2020, available at https://www.whatsapp.com/legal/#terms-of-service (Last visited on July 19, 2020).
[18] The Copyright Act, 1957, § 30; The Copyright Act, 1957, § 30.
[19] Ketcham v. Hall Syndicate, Inc.
[20]Chapman v. New York State Div. for Youth, 546 F.3d 230 (2d Cir. 2008).
[21] Pine labs vs Gemalto Terminals, [FAO (OS) 635/2009 & FAO (OS) 636/2009], ¶ 32.
[22] The Copyright Act, 1957, § 19(3).
[23] The Copyright Act, 1957, § 18.
[24] Smt. Jamilun-Nisha vs Ishhaq Ahmad Alias Raju And Anr. 2003 (4) AWC 3222.
[25] The Income Tax, 1961, § 9(1)(vi).
[26] The Copyright Act, 1957, § 19(8).
[27] supra note 11.
[28] The Copyright Act, 1957, § 33.
The Journal of Indian Law and Society 