Rise of social media leading to privacy & IP disputes. :Indian laws need teeth to tackle them

GDPR directives make platforms such as Facebook and YouTube responsible for ensuring that copyright-infringing content is not hosted on their sites.

Picture for representational purpose | Photo: Maxpixel

W.M. DHUMANE and MIHIR SHASHIKANT PATIL, The Print, 25 May, 2022: Since the inception of social media, the web-based form of media emerged with websites like Facebook, YouTube, Instagram, and a plethora of others. Today, their reach and impact has touched more than half the world’s population, standing at 4.62 billion users as of January 2022.

Considering this constant increase, the integration of humanity and social media will be far greater in the coming years. And this will increase intellectual property disputes relating to social media and ownership of content. To tackle these issues, countries such as the US, Germany, and the European Union have already started implementing rules and regulations to protect their citizens’ interests, more specifically their intellectual property rights and privacy. These put certain limitations on the companies and platforms and also give powers to the government in case there is any infringement. But India’s standing on the issue of ownership rights on social media is still not definite and needs development.

Standards for protecting intellectual property

Intellectual property safeguards the original creation of the mind and intellect. Copyright will be protected under the IP regime regardless of how or where it is developed. As a result, IP protection will be granted to creations, inventions, and ideas developed on social media. It will make no difference that they were made on social media. The nature of protection, on the other hand, will be determined by the nature of creation. A photograph, art piece, literature, movie, or other work of authorship will be protected as copyright. A representation on social media, such as a name, domain name, or page name, will be protected as a trademark. A product with a pleasing appearance may be protected by a trade dress, design patent, or an industrial design. And an App, tool, programme, technique, or other invention may be protected by a patent; and data, contacts, information, and interactions that are related to any trade may be protected by trade secrets. The standards for protecting intellectual property on social media are not as extensive as other kinds of media as it is still in the development stage.

However, some countries have prescribed specific rules for regulating the ownership policies of social media. The Digital Millennium Copyright Act, which amended the US Copyright Act. The amendments had three key updates: creating protections for online service providers in cases where the users infringe any copyright; encouraging the owners to provide wider access to their content in exchange of protection against unauthorised use of their content; and making it illegal to provide false copyright information. In contrast, India has been a little slower and less thorough in enacting legislation like the DMCA. The close Indian counterpart to the DMCA can probably be found in Section 52(1)(c) of the Copyright Act which permits the issuance of takedown notices to file-sharing websites to remove infringing content. Internet Service Providers, content hosts, and other intermediaries may take down content when they receive a take-down notice.

India’s significant trade partner, the European Union (EU) too is considering a restraint on social media activities, specifically on terror posts. The EU has also introduced the General Data Protection Regulation (GDPR), which prescribes rules on how companies, including social media platforms, collect and use the users’ data. In addition, it has also taken steps to protect copyright. Its copyright directive makes platforms responsible for ensuring that copyright-infringing content is not hosted on their sites as it shifts the liability to social media platforms for any infringing content posted by their users. Thus, social media platforms have to be extra cautious with the content they allow on their platforms. This directive stands opposite to the “safe harbor” protection given to the companies and social media service providers by the Digital Millennium Copyright Act in the US and by the IT Act 2000, and its corresponding rule, in India.

In 2008, Germany’s NetzDG law, also called the Facebook Act, came into force, wherein companies with more than two million registered users in the country were required to set up procedures for reviewing complaints about the content they were hosting on their platforms, and remove anything that was against the policy within 24 hours. Therefore, even if anyone holds any intellectual property right over any content, the authorities have the power to remove it without informing the creator. Similar rules have been issued in India as well under the ambit of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 for both social media and Over the Top (OTT) platforms, which mandates social media platforms to remove flagged content within 36 hours and also to trace specific messages back to the originator. The passing of these rules carried some criticism as to the invasion of privacy as such rules have been shown to stifle innovation and create monopolies in a variety of industries.

Further, in India, the subject of content regulation has always been important due to the diverse structure of Indian culture in terms of religion, economic standing, caste, and language. The policies and acts that currently govern social media are the Copyright Act 1957 and the Information Technology Act 2000. The laws still lack complete coverage over many issues such as platforms that contain links to infringing content. If India is to follow other countries in the regulation of ownership rights on social media service providers, it will have to take into account, among other things, the rights of the users as to the exclusive right over their original content. In addition, it is essential to provide speedy redressal mechanisms for any infringement of copyright like the US Digital Copyright Millennium Act provides.

Way forward

Since social media gave us all the capacity to share content and become publishers, the regulations governing the use of IP have changed significantly. The existing laws were drafted without keeping social media in mind. Only recently, policies have been implemented to address issues of privacy and usage of data, but not for the protection of IP assets. Other countries have developed and implemented their own regulations to protect their citizens’ privacy and IP rights. The issue of intellectual property on social media is complicated for India due to its diverse culture, but it can be effectively handled by taking appropriate steps such as implementing policies similar to the GDPR and DMCA that stand firm with the Indian requirements and are modeled as per the needs of the society.

There is also a need for a transformative draft policy to be tested in the Indian environment toward compliance and stronger protection of IP on social media that will provide an idea as to what is needed and what can be made better in the protection of IP assets on social media.

Dr. W.M. Dhumane is the DPIIT IPR Chair Professor and Mihir Shashikant Patil @MihirPatil0o9 is student of PG Diploma in IPR, both at Maharashtra National Law University Mumbai. Views are personal.

(Edited by Anurag Chaubey)