“I purchased a cosmetic product a few months back from a company on which I have written an article, given my reviews, and published the article on my personal blog. I have been posting articles entirely written by me. However, after some days of posting the article, the cosmetic product company reposted my article on their official Facebook page to advertise their product without my permission. Therefore, Can I sue the company for copyright infringement?”
Introduction
Have you ever thought that the creative posts you’re uploading on social media can be copy-pasted by someone else even though you’re the actual owner of the post? On every original content you post, you have an exclusive right to protect it from others who try to steal it. Here, “original” plays a major role in understanding an exclusive right. Everything you post online should be your original creation to get copyright protection.
The copyright will protect your content, meaning no individual, company, or entity can repost or post your content under their name. However, if he does, he would be liable for copyright infringement. In this article, the author explains the issues of copyright infringement in social media channels by referencing the copyright laws of India and the US.
Also, if you want to know about Patent Infringement, you can read the article below:
Best tips for patent infringement: types & cases
What is copyright?
In simpler words, copyright is an exclusive right provided to a person who has created an original work, and he has the right to use his work in any way. Here, “work” includes a wide range of creations such as artistic, literary, cinematographic, photographic, etc. Once you create an original work under copyright laws, you hold ownership over the work, which anyone cannot take away.
Original and Fixed works
Original works eligible for copyright protection are those independently created by a human author with a minimum level of creativity, excluding uncreative elements like titles, names, and short phrases—copyright safeguards expression, not ideas or methods. Works must also be fixed in a tangible medium, ensuring they are captured in a lasting form that allows perception, reproduction, or communication for more than a brief period. This fixation occurs when, for instance, a work is written down or recorded. Copyright law protects genuinely creative and fixed creations while distinguishing them from commonplace elements and unrecorded ideas or concepts.
Why is copyright important in the age of social media?
Today, all businesses must understand copyright laws to protect themselves from online embarrassment or potential litigation. For instance, once an image has been posted on any social media site, it is automatically copyrighted, irrespective of whether the uploader has taken additional steps to copyright it. Therefore, if any business decides to copy the image and post it as their own, they are exposing themselves to potential legal risks, subject to the will of the original uploader.
Another example is when a New York Federal Judge in favor of the original photographer in a copyright claim. The original photographer had initially posted the photo of football star Tom Brady on Snapchat, which went viral and was eventually uploaded on Twitter by some news organisations. The judge ruled that the news organisations had violated the Copyright Act and were held liable.
Therefore, copyright is essentially a form of theft, which can penalise you as per the laws of your jurisdiction.
Here, only the original creator or uploader of the work can hold another business or individual accountable for copyright. In case you have downloaded the image of the original creator, and the creator doesn’t mind your act, then there is nothing to worry about. However, flying under the radar is not a practice that is encouraged since it is capable of putting you at serious risk.
Copyright laws with respect to social media channels
India
In India, copyright infringement on social media is increasing with the number of users on social media. It’s a warning sign when people know little about the consequences of copy-pasting anyone’s hard work.
The act of downloading and uploading copyrighted content on social media without permission from the owner will be considered a crime.
Various solutions have been introduced in this regard, such as blockchain, tagging the owner, watermarking the posts, and restricting the access to download the posts. However, users still find ways to violate the copyright laws, which is not a good sign for Indian copyright laws, and it needs urgent legal action to avoid copyright infringement.
Several cases depict the role of Indian copyright law in social media, from which, in the case UTV software communication limited vs. 1337x to and ors., the Delhi High Court stated that copyright infringement on digital platforms is no different from copyright infringement happening in the physical model. Moreover, the Indian copyright act doesn’t provide any such provisions which differentiate crimes held in the virtual models from the physical model.
The US
Under US copyright law, it is illegal to repost, reuse, download, or upload any original content. In addition, the US copyright law states that the copyright owner has the right to file a suit against the third party, and the owner can seek injunctions or damages.
With increased social media users, sharing others’ content and photographs has become common among millions. This practice has made users forget about copyright law. Social media has become a platform where anyone can post or freely view others’ content, which has led to many copyright infringement cases in the US Jurisdiction in the past few years. In the North Jersey Media Group Inc. v. Pirro Case, the plaintiff, North Jersey Media Group (NJMG), filed a copyright infringement suit against Pirro Fox News. In this case, Pirro Fox News posted a photograph that was a copyrighted work of the North Jersey media group. The Pirro Fox News made some changes to the image and posted it on their official account, and Pirro Fox News used fair use as their defence. However, the court rejected Pirro’s argument as adding mere hashtags and alterations doesn’t create a new image in the eyes of the public. Therefore, Pirro Fox News could not claim protection under fair use provisions.
Understanding copyright and ownership of content on social media
Social media is a platform where millions of users post content covering different topics and categories and try to grow or expand their business or reach and connect with more followers for commercial use. However, it doesn’t suggest anyone can repost or copy and paste the owner’s hard work on social media. If your work is eligible to obtain copyright protection, then wherever you post online, you can continue to own the copyright of it.
However, as mentioned before, it doesn’t mean anyone can use your original posts and use them. For example, if you post an image on Twitter, users can retweet it, but no one can merely copy the image and use it on social media or outside of social media, as it wouldn’t lead to fair use, and they are capable of being subjected to infringement proceedings.
Who is the real owner of the content on social media?
It is not always clear who owns anything when it comes to social media posts. Many people wrongly believe that anything uploaded on social media can be used by anyone at no cost. Social media users do not immediately assign their work to others and do not give up any rights when posting content online.
Upon registration, users often agree to intellectual property rights restrictions in social media networks’ terms of service. The platform and other users are granted non-exclusive licenses to use the content on the social media site or with the related services. In most cases, usage outside of this range is prohibited.
If you want to know what can and can not be done with content on a social media network, you should read the platform’s terms of service and applicable licensing agreements. Social media users typically retain ownership of their posted content. However, they may license some usage rights to the social media platform and other users.
Reposting and repinning: etiquette and copyright considerations on social media
It should not be assumed that providing credit or linking a web page can avoid copyright liability. It is always the copyright holder that has the right to publish their work, and simply giving them credit and not taking their permission is not capable of immunising a secondary user from any copyright infringement claim.
Further, whenever a social media account is created, users often agree to the terms and conditions of the website. These terms often clearly mention that the poster owns all intellectual property rights over the content they post on the website. For example, Pinterest’s Terms of Use says:
“Your Content. Pinterest allows you to post content, including photos, comments and other materials. Anything you post or otherwise make available on our Products is called “User Content.” You retain all rights in, and are solely responsible for, the User Content you post to Pinterest.”
Therefore, when we agree to these terms, we take on the liability of any infringement claim. Therefore, while using your social media account, instead of downloading content and posting it as your own, it is always better to either repost or repin the original post of the creator.
Copyright infringement on different social media platforms
Facebook: According to facebook’s terms, you as a user reserve all the rights over the content and posts you share on Facebook, and it’s your right to change the privacy settings of how the content is shared on Facebook. It has also included that you grant Facebook a non-exclusive, sub-licensable, transferable, and royalty-free right to use the content. All the content or posts will be deleted when you leave Facebook. Even though Facebook has the license to use the posts and content, you have the authority with whom you want to share the content.
YouTube: The first rule of copyright mentioned in YouTube’s terms of use is that the creators should only post the videos they make, and they have the authorisation to use them. The users should not upload any videos that aren’t made by them or upload any content on which someone else has the copyright, such as music, programs, or videos made by others without their permission. If any creator violated this first rule of copyright, YouTube suspended their account permanently. Still, some creators violate these terms and upload content that’s not their own. However, the strict actions by YouTube have made copyright infringement cases on YouTube more manageable.
Telegram: The telegram terms also do not allow its users to share any material in violation of the law. However, over time, users have been sharing pirated content. Unlike YouTube, Telegram doesn’t permanently delete the user’s account after he illegally shares any content, making Telegram another alternative to Torrentz. Telegram can only take down the content when the owner himself claims that his content is being distributed illegally, which is an absolute concern as preventing copyright infringement cases in Telegram is challenging to handle.
Instagram: Instagram has evolved into a platform for users to promote their services or business, or it also provides financial benefits for the users who collaborate with brands and promote it on their official accounts and, hence, make money out of it. This has become quite demanding among the youths who want to make money through their posts or collaborations.
With the increasing demand, the need for copyright protection also increases as most of the users who post their creative content on Instagram hold the copyright over it, and no one can reuse it without their permission. According to Instagram’s terms and use, users can only post content that doesn’t violate someone else’s Intellectual property rights. Therefore, the best way to prevent copyright infringement is to make content yourself.
If you unintentionally committed copyright infringement and legal action has been taken against you, you can defend yourself on the grounds of innocent infringement.
Fair use and fair dealing in copyright : Balancing public interest and owner’s rights.
It is essential to understand the balance between fair use and fair dealing. The exclusive rights provided to the copyright owners are qualified by these two principles. The goal of fair dealing and fair use is to find a middle ground where the rights of the creators are protected as well. The creation is used for public crater works as they can be used as a powerful tool for fostering innovation, creativity, and the free flow of ideas.
It is important to understand the balance between fair use and fair dealing. The exclusive rights provided to the copyright owners are qualified by these two principles. The goal of fair dealing and fair use is to find a middle ground where the rights of the creators are protected, and the creation is used for public benefit. They can help foster innovation, creativity, and a free exchange of ideas.
In the United States of America, the concept of fair use permits the restricted use of copyrighted content without permission from the owner. However, it is to be understood that free use does not mean no-cost use. The criteria for assessing The circumstances under which the copyrighted content use is permissible even if the permission of the owner is absent
Similarly, in India, the copyrighted work can be used without the permission of the owner if it is being used as per the notion of fair dealing. Fair dealing is a concept that varies from country to country, although it typically includes the same factors. Indian law does not provide a clear definition of where dealing; therefore, it is interpreted differently depending upon the circumstances and the facts of each case. Courts employ common sense and fairness to determine how copyrighted materials can be used without permission.
The whole concept of fair use and fair dealing revolves around not infringing the rights of the copyright owner while giving users access for limited reasons such as study, education, criticism, and review.
The concepts of fair usage and fair dealing are not set in stone but are context and purpose-dependent. It is essential to employ them in a responsible and ethical manner that considers the legal framework and the impact on copyright owners.
Simply put, a thriving cultural and intellectual environment relies on fair use and fair dealing principles. They protect the rights and financial incentives of content producers and copyright holders while allowing users and organisations to interact with copyrighted content. Copyright law is based on this delicate balancing act between individual rights and the public’s interest in sharing information and culture.
Factors considered when determining copyright infringement
The following are the 4 factors mainly considered for determining whether copyright infringement has occurred or not:
- The purpose and character of usage. This is where we examine whether copyrighted material is used for commercial or educational purposes. While educational purpose comes within the ambit of fair use, commercial purpose makes you liable for copyright infringement.
- The nature of the copyrighted work. If you have shared a quote from a textbook, it is more likely to be considered fair use. However, if you posted somebody else’s visual work without adequate permission or credits, you would be held liable.
- The length of the work used. If you posted a 10-second clip of a 2-hour movie, it mostly comes within the ambit of fair use. However, if you have posted a full video of someone’s work, you have committed copyright infringement.
- How the use impacts the market and the value of the original work. If the reuse of the work has made it harder for the original creator to license or sell their work, it would be considered copyright infringement. For instance, copying and posting an entire blog causes the original writer to lose clicks and generate traffic on the original website. This doesn’t come within the ambit of fair use.
Some suggestions to avoid copyright infringement on social media platforms
- Always try to seek permission from the owner before posting their content.
- It’s not true that tagging the owner or giving credits will take away the risks of copyright infringement because the liability of the owner to sue cannot be removed.
- Never encourage your followers to do any activities that will promote violation of copyright laws. For example, ask your followers to recreate photos or videos.
- Never post or use images with a watermark, as the right owner can take action once they find out.
- Before using hashtags or quotes to promote your business, ensure that it has not been used before and nobody holds any intellectual property rights over them.
Frequently Asked Questions (FAQs)
Do I get copyright protection after posting something on social media?
Yes. As long as you are the original creator of the work, you automatically receive copyright protection for your work. You do not need to register your work anywhere separately.
How can I avoid copyright infringement?
The best way to avoid copyright infringement is to be aware of the terms of use of the website and the intellectual property laws in your jurisdiction. Do not try to reproduce somebody else’s work as yours, and instead, seek the necessary permissions for using the original creator’s work.
Conclusion
To conclude, it is important to be aware of intellectual property laws, primarily while operating social media, to avoid any legal issues arising in the future. Furthermore, the laws in the analogical world also apply to the online world. Hence, it is essential to be careful and have the correct knowledge about online content.
To gain guidance for your copyright issues or to understand the concept of your business, please consult the quality legal counsellors at LegaMart, who shall ensure that your queries are answered in the best manner.
If you’re an IPR lawyer aiming to expand your practice internationally or seeking a skilled legal team to support your growth, register with Legamart today. Join our community of over 2500 lawyers and take your practice to the global stage, all while ensuring cost-effectiveness.
