INTRODUCTION
With the undeniable dependency on the internet, social media has become one of the most used platforms for disseminating information from any corner of the world. The law, being omnipresent, provides legal protection to every right arising from any creation. Copyright law, as the guardian of all authorial rights, offers a legal shield to all works shared on social media, including musical works and every exclusive right associated with them. These rights are primarily enjoyed by lyricists, composers, and music producers over their creations. With the internet accessible to almost 8 billion people, social media platforms profit from numerous copyrighted musical content. However, this also leads to concerns over copyright infringement, often going unaddressed due to potential liabilities on social media platforms. Infringement, which involves taking commercial advantage of musical works shared on social media without permission from the rightful proprietor, can lead to damages, fines, and even potential criminal charges. To evade vicarious liability, social media giants like Twitter, YouTube, and Meta's Facebook and Instagram have implemented copyright policies and measures to address infringement, including content filtering, takedown procedures, and collaborations with copyright owners. Recent high-profile cases in India have highlighted the legal complexities surrounding the modification and use of musical works, emphasizing the necessity of adhering to copyright laws and obtaining necessary permissions.
This article mainly discusses the upcoming technological innovations occurring on social media, which elevate broadcasting and usage to a new level, highlighting the inadequacy of existing statutes that need revamping to accommodate current and future revolutions in the use of copyrighted musical works on any platform. Regarding whether these 20-30 second videos can infringe copyright, the answer is affirmative: any use of a copyrighted work without the owner's consent constitutes infringement. No user can infringe the public performance rights of a copyright owner by using such work in their own name, according to Section 51 of the Indian Copyright Act, 1957. People must be made aware of the necessity for licenses and prior permissions.
Upon examining Instagram Reels, we notice that if a user uploads a reel using audio from their own account that actually belongs to a copyrighted work of another, Instagram still shows it as original audio, which it is not. This poses a significant risk of confusing the identity of the original owner with that of an imposter. To understand the issue of copyright protection in short videos, it is imperative to delineate what constitutes a "work" in this context. The focus of this paper primarily centers on the use of musical works and sound recordings performed in public on these platforms. Therefore, the paper first discusses the evolutionary mechanisms of short-video platforms, then outlines the legal provisions that could be utilized to secure copyright benefits over copyrighted musical works on these social media platforms. Furthermore, I aim to highlight the policies of these platforms in protecting copyright, with case discussions shedding light on the balance between creativity and intellectual property rights regarding musical content shared on emerging platforms, and suggest examples from the EU's copyright directives as potential recourse to reshape the copyright regime in India.
COPYRIGHT LAW FOR MUSICAL WORK IN INDIA
According to Section 2(p), a "musical work" means a "work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken, or performed with music." The Delhi High Court has defined musical work as: "Musical work is not merely a combination of melody or harmony or either of them; it must necessarily have been printed, reduced to writing, or otherwise graphically produced or reproduced." According to Section 2(ffa), "composer," in relation to a musical work, "means the person who composes the music, regardless of whether he records it in any form of graphical notation." The Copyright (Amendment) Act, 2012 contains specific clauses addressing individuals like lyricists or composers whose creations are incorporated into films or sound recordings. According to these provisions, the rights to royalties arising from the utilization of such works in mediums other than films or sound recordings belong to the original creators and can only be transferred to their heirs or copyright societies acting on their behalf.
The existing copyright law has struggled in its application due to unauthorized reproduction and distribution of protected musical works and sound recordings on micro-entertainment platforms like Instagram Reels, YouTube Shorts, and MX Takatak. Initially, the vast expansion of the internet and digital media platforms rendered copyright laws inadequate for protection. However, the 2012 amendment sought to cover digitalization through provisions creating liability for internet service providers and introducing statutory licenses. Yet, technology is inherently evolutionary, and continuous breakthroughs in computer technology are introducing various modes of public content distribution, with the latest being short-video platforms, which urgently require updated rules and governance institutions to address the challenges posed by easy reproduction and the infiltrating nature of digital platforms that can create loopholes for infringers.
COPYRIGHT INFRINGEMENT ON MICRO-ENTERTAINMENT PLATFORMS
The advent of social media platforms has facilitated the widespread dissemination of copyrighted content, including musical works, raising significant copyright infringement concerns. Individuals and entities sharing copyrighted music on social media platforms without proper authorization risk encountering substantial legal repercussions. According to the Indian Copyright Act, copyright infringement occurs when individuals utilize, replicate, or distribute copyrighted material without the copyright holder's consent. Merely attributing credit to the original creator does not automatically absolve one from liability for infringement. To combat copyright infringement, social media platforms have instituted various measures, including content filtering, copyright takedown protocols, and collaboration with copyright owners to prevent unauthorized sharing of their content. Nonetheless, the prevalence of infringement on these platforms remains a significant concern.
WHAT ARE THESE SHORT VIDEOS?
Reels and Shorts are features offered by social media giants like Facebook and YouTube that allow users to record and edit mini video clips with various audio and visual effects. As of January 2024, Instagram Reels alone has over 2.5 billion active users. Users can utilize not only their original audio but also existing sounds whose copyrights are owned by their respective creators. This raises potential questions regarding the permissibility of musical works available on the platform, as the confidentiality of agreements between composers and the platforms is not publicly known. These platforms showcase brief videos covering a diverse array of subjects, including lip-syncing, dancing, humor, technical guidance, fitness inspiration, and more. With the proliferation of short videos as a favored mode of entertainment and communication, an increasing number of individuals are generating and disseminating them across social media platforms such as Facebook Reels, Instagram Reels, and YouTube Shorts. However, the intricacies surrounding copyright protection in short videos present numerous complexities and hurdles. It is customary for users to emulate the structure of popular videos on these platforms, integrating favored clips or sounds. Given that a substantial portion of the content on these platforms falls under copyright laws, inquiries arise regarding the equitable treatment of copyright proprietors.
SOCIAL MEDIA PLATFORM POLICIES ON COPYRIGHTED MUSICAL CONTENT IN INDIA
Major social media platforms have implemented copyright policies and measures to address infringement issues, particularly concerning musical works. These platforms are recognized as intermediaries defined under the IT Act as "a person who, on behalf of another person, receives, stores, or transmits that record or provides any service with respect to that record." To avoid lengthy legislative processes, platforms enforce their own copyright policies to govern how millions of users utilize and share copyrighted content. These policies typically align with international copyright laws and conventions, as well as domestic legislation, while considering their responsibilities to monitor third-party violations on their platforms. These micro-video platforms enforce their policies through user agreements, requiring users to comply with their strict copyright guidelines when posting content. For instance, Instagram's terms of use and community guidelines clearly state that no user can post content that violates someone else's intellectual property rights, including musical works and sound recordings. They also provide features like a music library, where they have accumulated numerous copyrighted works through agreements or licenses, providing royalties for their usage. Similarly, YouTube allows users to sample copyrighted content with permission through its audio library and creator music program. In cases of violations, these intermediaries carry out takedowns, account terminations, and muting. This responsibility imposed on intermediaries has been subject to various considerations, exemplified by the famous Shreya Singhal case, where the Supreme Court examined the onerous burden placed on intermediaries if they were solely responsible for determining the legitimacy of the numerous requests they receive for content removal, which could result in even legitimate content being removed to avoid litigation.
CONFLICT BETWEEN SECTION 51 AND THE SAFE HARBOR PROVISION OF THE IT ACT
This position was clarified in SCIL v. Myspace, where a conflict arose regarding Section 51(a)(ii), which potentially imposes liability on online intermediaries for third-party content on their platforms, conflicting with Section 79 of the IT Act, also known as the safe harbor provision, which absolves intermediaries of such liability. In 2008, SCIL sued Myspace for copyright infringement, alleging unauthorized dissemination of copyrighted works, violating Section 51(a)(i) of the Copyright Act. Additionally, Myspace's platform facilitated the upload of infringing content and profited from associated advertisements, breaching Section 51(a)(ii) of the Copyright Act. Myspace purportedly had knowledge of and condoned the infringement. Despite protective measures, widespread violations persisted, causing substantial harm to SCIL. Myspace denied all allegations, citing Section 79 as a safe harbor against infringement claims. However, the court shifted the responsibility onto the copyright holder to demonstrate that the intermediary was aware of the infringement. Thus, internet intermediaries are immune from liability for copyright infringement if they do not possess actual knowledge of the infringement.
RECENT CASES OF COPYRIGHT INFRINGEMENT INVOLVING MUSICAL WORK ON SOCIAL MEDIA IN INDIA
Recently, BJP Karnataka's Instagram reel featuring PM Modi faced backlash from Australian singer Lenka Kripac, who objected to the use of her song "Everything at Once." This incident illustrates the legislature's lack of awareness regarding the licensing of copyrighted works from other countries. Fortunately, the video has been removed, avoiding potential legal action from the copyright owner.
In another incident, during the Bharat Jodo Yatra, the Indian National Congress faced a copyright infringement case for using musical works and sound recordings from the film KGF Chapter 2 in their political rally videos. The copyright owner, MRT Music, alleged that their works were used in 30-second videos shared on social media platforms like Twitter (now X), Instagram, YouTube, and Facebook without any agreement or license, gaining political mileage unlawfully. The complainants described their actions as a "serious offense amounting to making a false electronic record with an intention to mislead the public." The Karnataka High Court found it a prima facie infringement case and condemned the Congress party for claiming IP rights over the content on various platforms, including allowing the "Try It" feature in Instagram Reels without seeking prior permission.
In the renowned US case Wixen Music Publishing, Inc. v. Triller, Inc. (2020), a music publisher sued the short-video platform for infringing its copyright on over 1,000 songs by using, copying, and exploiting them without a licensing agreement, claiming damages. However, the case was dismissed by the federal court due to insufficient legal filing. The case could have resulted in an out-of-court settlement, but the questions raised by the dispute remain unanswered. Triller later faced accusations from T-Series, India's largest music company, for infringing on their copyrighted works, including Bollywood soundtracks and Indi-pop music. T-Series sent a legal notice to Triller, warning against the use of its copyrighted works in any form.
These cases underscore the importance of licensing, which is enshrined in Indian copyright law under Sections 31 to 31D, outlining three types of licensing: voluntary, statutory, and compulsory licensing. The first type is what most micro-entertainment platforms and copyright owners resort to. If anyone disseminates a copyrighted musical work in public without obtaining a license or any agreement allowing them to do so, they may be punished under Section 51 of the Copyright Act with heavy penalties, imprisonment, or both.
LEGAL CONSEQUENCES OF SHARING COPYRIGHTED MUSIC ON SHORT-VIDEO PLATFORMS
Anyone infringing the exclusive rights held by a person under the Copyright Act may face serious legal and financial consequences. According to the Act, such violations can lead to damages, fines, and even criminal charges. Social media intermediaries may also be held accountable if they fail to implement adequate measures to prevent violations. Recently, the Hon'ble Karnataka High Court in the INC case highlighted the remedies available to complainants following infringement, including both civil and criminal actions under the Copyright Act, IT Act, and even IPC. One can file a complaint under Sections 63, 51 to 53A, and Section 55, which grant civil remedies. This includes the possibility of filing for injunctive relief or seeking compensatory, preventive, or punitive damages. The court clarified that "the same fact matrix may give rise to a cause of action in tort, in contract, and in crime; unless the law prohibits a particular action under criminal law, the police cannot keep the complaint pending merely because parties are involved in a civil proceeding based on the same facts, thereby confirming that both actions can proceed simultaneously without causing prejudice to either party." Therefore, if infringement is accompanied by fraudulent intent, punishment or imprisonment under Section 66 of the IT Act or under Sections 120B, 403, 465, and 34 of the IPC may follow.
INSPIRATION FROM EU'S COPYRIGHT DIRECTIVE
While these social media intermediaries exercise control over their platforms through automated content moderation to detect, identify, and address copyright infringement issues, the EU in 2019 released a directive, specifically Article 17 of the Digital Single Market Directive, which mandated that in the absence of authorization from the copyright holder, online content-sharing service providers (OCSSP) must fulfill stringent conditions to qualify for exemption from direct liability for copyright infringement by their users. This provision has raised widespread concern regarding its potential to erode user diversity and content variety. Consequently, the measures enacted by EU legislators have significantly transformed the regulatory framework of platform governance, heightening the responsibility of social media platforms for user-generated content. While intermediaries previously enjoyed immunity in various respects, copyright infringement now stands out as a notable exception. To proactively address potential legal issues arising from notice and takedown processes, social media platforms had already implemented comprehensive copyright moderation systems before the directive's implementation. Previously, platform stakeholders often claimed non-media status to avoid accountability for user-generated content. The introduction of this directive compelled content creators to engage in self-censorship to avoid copyright infringement penalties, thereby influencing moderation practices significantly. European courts have also interpreted the directives, enforced exceptions, and instructed nations to consider user rights seriously while implementing the directive. The Indian legislature can draw inspiration from this directive to improve policy and regulation by promoting transparency and accountability, mandating these platforms to reduce or eliminate the use of unlicensed works.
CONCLUSION
With the extensive reach of social media, it is vital for all stakeholders—including content creators, users, platforms, and legal authorities—to balance the need for fostering creativity with the protection of intellectual property rights. Even with a stringent statutory framework in place, once a user generates a musical work and publishes it, complete prevention of infringement remains elusive due to hidden streams and unknown piracy sources where such work may be used, shared, and commercialized without the creator's awareness. Studies have shown that users often lack the sophistication to fully understand the implications of intellectual property rights and the legal mechanisms associated with them. Thus, the responsibility lies not only with users but also with creators to refrain from using copyrighted musical content without permission. If they do need to use such content, it is essential to identify the rightful owners and seek permission; if permission cannot be obtained, their usage should fall under fair use. Furthermore, to address the unawareness of original owners, copyright societies can utilize mass awareness programs to protect original creators, especially smaller composers or content creators, from exploitation.
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