India: Copyright Protection Of Online Content

Last Updated: 3 July 2017
Article by N. Mahabir
  1. With the ever-evolving social media and new platforms, content is generated in gigantic proportions.  Every person is contributing to the tera bytes of new online content on a regular basis. 
  2. Every person is an author of the content created, assuming it to be an original content or considered as original in the copyright context.  The content takes various forms, be it a literary work (text), artistic work (images) or cinematographic content (videos).  Amongst these, literary content is more prevalent and more often created considering the relative ease of its creation and communication.  It is another matter that a caricature can tell a story through an image.
  3. What rights enures to the content posted on a social media site or any other online medium.  Online medium and social medium presents unique opportunities and its own kind of challenges.  It enables the author to present his or her views, seek comments and respond to such comments in quiet succession.  Social media posts many a times ends up as opinion, counter opinion and series of comments by various persons.  Is this post / feed free for all to copy in any manner they deem appropriate?
  4. The answer would be a 'No'.  The online content or feed in the form of a text, image, video or music, assuming it to be an original creation, would be protected as a literary work under the Copyright Act.  Original denotes the presentation of the chain words and not the idea underlying the presentation.  No person has the right to copy it or use it without permission of the author like any other literary work in the offline world.  The post if it is a cartoon caricature or image would be protected as an artistic work.  The post if presented in the form of a video would be protected as cinematographic work.  Under Section 14 of the Copyright Act, no person without the permission of the owner of the work has the right to copy, publish or communicate it to the public.
  5. However, the caveat is that the person who posts the content should be aware of the terms of engagement with the media platform on which these contents are posted as to the right of the platform on this content.  If the person has agreed to the condition of the platform that any content posted on the platform would vest ownership on the platform, then the author of the content can have no reason to object if the content is being used by the platform.
  6. What right would arise in the case of series of comments on a social platform? Would each comment per se qualify for protection or is it only the entire chain of comments which would be entitled for protection?  This arises especially in the context that it is only the entire chain of comments which would give a meaningful story or context to the comments.   Each comment would qualify as online content.
  7. If the social platform is content neutral and does not claim any right on the content posted by its users, the author of the comment would have absolute rights over the comments.  It is the literary element of the text or comment which will stand protected and not the opinion or idea in the comment.  It is possible that the chain of comments by various authors can also be protected as a collective work with the numerous contributors being co-authors.  Collective work as the words denote are works of different authors put together, like a magazine or newspaper.
  8. Copying of the content of another person without consent will invite infringement action under the Copyright Act.  However, the person who asserts ownership should be the owner of the content, which could be by being the author of the content or through an assignment of rights from the author of the work.  It is necessary to issue a takedown notice to the owner of the platform and the person who has posted the content prior to initiating an infringement action. 
  9. Section 52 of the Copyright Act provides for various acts which do not amount to infringement of Copyright like fair comment, use as part of reporting on current news etc.
  10. When the content does not undergo frequent changes, it is advisable to apply for copyright registration of the content prior to online disclosure.  This would provide an unimpeachable source of the creation of the work.
  11. Some steps could be taken as precautionary measure to deter potential infringers from copying your content by posting a notice that you assert copyright in the content.  Technology could be used to detect copying of online content elsewhere on the web.
  12. Being online pirated content does not go undetected for a long time.  Users should be therefore vigilant and careful to not copy the content of other users lest they invite legal trouble for themselves or content shaming or charges of plagiarism from fellow contributors on the platform. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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