Recently we wrote about the new rules for social media in India, that caused uproar. Well, this seems to be the theme of the season. Twitter found itself mired in yet another controversy for suspending accounts of IT Minister Ravi Shankar Prasad and Chairman of the Parliamentary Standing Committee on IT, Shashi Tharoor. Whether it is coincidence or some sort of irony, we will never know.

On the 25^th of this month, IT minister Ravi Shanker Prasad’s Twitter account was blocked for an hour. Soon after, Shashi Tharoor found he had been locked out of his account (again) in trying to explain why he was locked out the first time. Both lock outs were a consequence of DMCA notices received by Twitter for A.R. Rahman’s Maa Tujhe Salaam and Boney M’s Rasputin respectively. Had this happened a few months ago, it may not have made headlines. But now, considering the riot that the new IT rules have caused, even a one hour lock out has caused controversy.

Ethics That Call For ‘Due Diligence’ and Notices

The IT Minister accused Twitter of violating Rule 4(8) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 where they failed to provide him any prior notice before denying him access to his own account. Here’s how Rule 4(8) reads:

4. Additional due diligence to be observed by significant social media intermediary.—(1) In addition to the due diligence observed under rule 3, a significant social media intermediary shall, within three months from the date of notification of the threshold under clause (v) of sub-rule (1) of rule 2, observe the following additional due diligence while discharging its duties, namely:—

(8) Where a significant social media intermediary removes or disables access to any information, data or communication link, under clause (b) of sub-rule (1) of rule 3 on its own accord, such intermediary shall,—

(a) ensure that prior to the time at which such intermediary removes or disables access, it has provided the user who has created, uploaded, shared, disseminated, or modified information, data or communication link using its services with a notification explaining the action being taken and the grounds or reasons for such action;

(b) ensure that the user who has created, uploaded, shared, disseminated, or modified information using its services is provided with an adequate and reasonable opportunity to dispute the action being taken by such intermediary and request for the reinstatement of access to such information, data or communication link, which may be decided within a reasonable time;

The Rule addresses removal and disabling of information, data or communication link (essentially hyperlinks) and is silent on the disabling of an account. In these cases, it wasn’t the content that was removed or made inaccessible, users were shut out of their accounts. The Rule in its present form doesn’t seem to cover a situation such as this. That said, Twitter in its Copyright Policy states that a ‘good faith attempt’ will be made to contact the user whose content was removed based on a copyright notice.

The Balancing Act

Weighing the right of a user to have uninhibited access to his/her social media account against copyright is a precarious balance that needs to be first understood and then struck. Copyright laws are in place to ensure a healthy environment for creativity. While access to social media accounts is an important part of life (especially in today’s digital age), honouring copyright is even more so (for most of use, it’s content that’s kept us sane through lockdowns).

While most of us don’t want to intentionally flout copyright laws, not knowing the extent of ‘fair use’ can sometimes get us into trouble. This Twitter lockout being case in point. This was a classic case of copyright infringement for a musical work for which Sony Music (Maa Tujhe Salaam) owned copyright. In the event that the music was used after permission for use was sought, or if the song used was in the public domain (like Happy Birthday To You), or the platform it was being used on had a license from the rights holder, this wouldn’t have amounted to a copyright violation.

The general principle applicable to the use of copyright protected content on all social media posts is that all pictures, songs, media used without consent of the copyright holder amounts to infringement. Many social media sites today like Instagram and TikTok have a repository of IP protected content that has been licensed to them. As users of these apps, you and I can use this content without worry of being slapped with a copyright infringement claim. You’ll notice you cannot (legally) use this music outside of the platform though, for their licenses are limited to use on the specific platform alone. For instance, when you save a reel off Instagram, the music you’ve used to make it disappears. This is the social media app honouring the terms of its license.

Now you know what you shouldn’t do. Here’s a quick checklist to run through before you use copyright protected content on your social media posts:

• Check to see if the content is licensed. If you hold a valid license, by all means, use it!
• Not sure if the content you’re using is copyright protected and don’t know how to check for a license? Avoid using it as is. Look to see if you find a paid version of it, download it and then use it in your post.
• Always give the author of the work credit for it. Remember, the idea of copyright law is to prevent the unauthorized use of copyright protected work. If creators are not given their fair due, why will they create?

More than the light this controversy has shed on the tension between the Government and social media platforms, it’s given us all a reason to learn the ethics of content use on the internet. Artists create content not only because of a deep need to, but to make a living. Let’s always remember that and do our bit by sharing it right.

Who is a Performer?

A “Performer” under the Copyright Act (Act) includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance. While inherently, the law provides for ownership of all copyright to vest in the author of the work, the title is also transferrable under the law.

Transferability of Copyright

The Act lays down a mode and method of transferring copyright by way of assignment or license. Section 18 of the Act provides for the right to transfer of title of the copyright and mandates that the Assignee be treated as the owner of the same.  Section 19 lays out guidelines for modes of assignment and the requirements for a valid assignment. It also provides for interpretation of period of assignment and territorial extent of assignment in case an assignment does not explicitly lay it down. Section 30A extends the applicability of these provisions to licenses as well. Section 38 of the Act provides an exclusive right to Performers for their performance and Section 38A lays down all the ways in which a Performer can utilise their act of performance. The proviso to section 38A provides for the Performer’s right to royalty in case of commercial use of the same.

Section 18 – Introduction of new provisos via the Copyright Act of 2012

Before the introduction of the Amendment Act of 2012, there was only one proviso to section 18 which laid down a limitation/qualification to the assignment title being effective only after the realisation of a future work. After the amendment act of 2012, three additional provisos have been inserted.

Exploitation only in the mode and media assigned: The first restricts assignment only to the extent of exploitation via media or modes that exist or are in commercial use at the time of assignment, unless the assignment specifically provides for a source other than those. Assignment does not automatically extend to future modes and media or a medium or mode of dissemination made commercial after the assignment.

No Assignment or Waiver of Royalties: The second and third prohibit an author of a literary or musical work from assigning or waiving the right to receive royalties on an equal basis with the assignee whether included in a cinematograph film or not.

The Playing Field of Royalty and Waiver

Royalty waiver capped at 50%

The amendments use the words “right to receive royalties to be shared on an equal basis with the assignee”. This means two things:

1. Every author has the right to royalty which CANNOT be waived.
2. In case of assignment, these rights are to be shared on an EQUAL basis with the assignee.

The act provides for a waiver. But the maximum waiver permissible is 50%. Any agreement entered into to the contrary will be void.

To illustrate, let’s say an owner of a musical work enters into an agreement with a broadcasting agency with a royalty assignment in a ratio 30:70 in favour of the broadcasting agency. Such agreement would be rendered void. If the royalty assignment was made inversely, it would be permissible under the Act.

Exceptions

There are three exceptions which allow for assignment of royalties of more than 50%, even entirely. This can happen in the following cases:

1. assignment of the right to communicate the literary/musical works to the public, along with the cinematograph film in a cinema hall;
2. assignment made to a legal heir of the author; or
3. assignment made to a copyright society for collection and distribution of royalties.

Introduction of sub-sections (8), (9), (10) to section 19

Section 19 provides for mode of assignment. Here’s a round-up of the major changes:

1. Assignment of copyright to a third party contrary to the terms and conditions of the rights assigned to a copyright society which the author is a member of shall be void. [Section 19(8)]

This insertion has been made to protect Copyright Societies and to streamline royalties by establishing these as a distinct channel for royalty distribution. By virtue of the amendment, the title transfers from an author to the copyright society of which (s)he is a member. Consequently, if an author wants to grant a third person an assignment or a license, (s)he will have to renounce membership from the copyright society before doing so.

2. When an author assigns or licenses copyright in in his/her work, including sound recordings for a cinematograph film, his/her right to claim equal share in royalties remains unaffected. An exception is made for “communication to the public of the work, along with the cinematograph film in a cinema hall”. [Section 19(9) and Section 19(10)]

Application of amendments – Prospective, Retrospective or Retroactive?

The Act does not throw light on the applicability of these amendments. So, we’re applying the golden rule to reading the provisions.

First, Section 18 – “shall not assign or waive”

From a plain reading, it indicates a prospective application. The usage of “shall” indicates that it is a mandate on the author that can be applicable only once the provisions come into force.

Second, the S 19(9) and 19(10) – “no assignment..shall effect the right”

The subsection merely says “no assignment”. It does not specify “no future assignment”. So, it seems the intention is to protect the right against every assignment, whether made before or after the amendment came into force. This may not necessarily imply that the subsections are applicable retrospectively, however, it makes it amply clear that no assignment, whether future or past shall take away the ability of the author to claim an equal share of royalties and considerations payable. Therefore, the sub sections could be said to operate ‘retroactively’.

It also supports a logical conclusion that past assignments, where all royalties may have been assigned, would not be rendered void, but would no longer affect the author’s claim to equal royalties.

The jurisprudence and precedents on this subject are limited, therefore the interpretation of the courts may vary. This is the personal opinion of the author : Jashandeep Kaur