Bad Boys of the Web

29 February 2020

Bad Boys of the Web

With the prevalence of the internet and smart devices, concerns about copyright theft on content sharing platforms such as YouTube have skyrocketed worldwide.

Such concerns are indeed high and justified, says Manisha Singh, founding and managing partner at LexOrbis in New Delhi. “The widespread reach of the internet has made it easier to access copyrighted content, which has aggravated issues related to copyright theft. Having said that, platforms such as YouTube have effectively developed various mechanisms to tackle this issue and assist content creators in the protection of their work.”

The concern level is also high in Indonesia, says Justisiari Kusumah, managing partner at K&K Advocates in Jakarta.“However, these online platforms are active in protecting copyright holders by taking the initiative to take down infringing content without waiting for the complaints of the copyright holders.”

The concern in Taiwan is not as high, says Christine Chen, a partner at Winkler Partners in Taipei.

In fact, using copyrighted works in such a way actually has been decreasing, Chen says. “Thanks to better enforcement of YouTube’s copyright reporting system and related regulations, videos containing complete unauthorized works have been removed more quickly from YouTube than in the past. However, the complete eradication of copyright infringement on YouTube remains unresolved. A recent well-known case involved a YouTube channel showing shortened versions of movies that were then reviewed or parodied. The YouTuber involved is currently being sued by the copyright owners and some of their clips were removed by YouTube.”

 

The platforms

With a wide emergence of copyright theft online,manycountriesare now either launching incentives or holding content sharing platforms accountable to minimize infringement.

The Australian Copyright Act 1968 (Cth) has limited “safe harbour provisions”; however, these apply only to carriage service providers such as internet service providers and certain organizations operating in the disability, educational and cultural sectors, and not to digital platforms (such as online search engines, social media and digital content aggregators). “While the Australian Competition and Consumer Commission’s Digital Platforms Inquiry final report included a recommendation that a mandatory takedown code managed by the Australian Communications and Media Authority be introduced for digital platforms, the federal government has not accepted that recommendation,” says Lucy Hartland, a senior associate at Spruson & Ferguson in Sydney. “The government considers that such a code could have unintended effects and that further data and consultation will be necessary in order to identify the best option for controlling copyright infringement taking place on digital platforms. A review of reforms that were implemented in 2018 (which included a limited expansion of the safe harbour regime) is foreshadowed for late 2020, and this may expand to a consideration of how to incorporate digital platforms into the existing regimes.”

In China, online video platforms have a strong incentive to combat copyright theft, because “any failure to take necessary measures might result in tort liability and administrative penalty,” says Xia Zheng, founder of AFD China Intellectual Property in Beijing.

Also, pursuant to China’s relevant laws and regulations, ISPs have a general obligation to perform standardized management and pay reasonable attention to the contents of users’ uploaded videos. “Online service providers will accordingly be accountable for tort liabilities and damages incurred if they know or should have known about an ongoing copyright infringement and if they failed to take necessary countermeasures or otherwise provided technical support to the infringer,” Zheng says. “Such countermeasures could include deleting or blocking links to infringing content. So too may administrative reprimands and punishments apply in addition to the potential criminal and tort liabilities imposed on Chinese video platforms.”

The National Copyright Administration regularly undertakes special actions against piracy on video websites, such as the well-known “sword at the internet” campaign. From 2005 to 2019, the Copyright Administration and law enforcement departments have at all levels shut down over 6,000 infringing websites and removed 2.56 million links to sites containing copyright infringement, Zheng says.

Similarly, in India, content sharing platforms can be held accountable if they fail to take down the infringing content after having actual knowledge of the infringement. The platforms fall under the definition of intermediaries which is defined under Section 2(1)(w) of the Information Technology Act, 2000 as follows: “Intermediary, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes.”

As per Section 79 of the Information Technology Act, an intermediary is not liable for any third party information, data, or communication link made available or hosted if (a) its function is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or (b) the intermediary does not (i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission; (c) the intermediary observes due diligence while discharging its duties under this act and also observes such other guidelines as the central government may prescribe in this behalf.

The act further provides that the above safe harbour provisions shall not apply if:

  1. The intermediary has conspired, abetted, aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act; or
  2. Upon receiving actual knowledge, or on being notified by the appropriate government or its agency that any information, data or communication link residing in or connected to a computer resource, controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.

In addition to this, intermediaries are regulated by the Information Technologies (Intermediaries Guidelines), 2011, which primarily specify due diligence requirements for intermediaries to claim exemption under the Information Technology Act. The guidelines require that an intermediary, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through e-mail signed with electronic signature about any shall act within 36 hours and, where applicable, disable access to the infringing information. Further, the intermediary shall preserve such content and associated records for at least 90 days for investigation purposes, says Singh.

The Indian courts have also played a significant role in the development of jurisprudence pertaining to intermediary liability for copyright infringement, she says. “In Myspace v. Super Cassettes Industries (2016), the appeal was filed against the interim injunction passed by a single judge of the Delhi High Court restraining the appellant from hosting all of respondent’s present as well as future work on their website.”

The Delhi High Court noted that while Section 79 grants a measured privilege to the intermediaries, such privilege would not curtail rights guaranteed under the Copyright Act, and accordingly held that provisions of the Information Technology Act and Copyright Act have to be read harmoniously.

“Liability can be imposed on the intermediary; however, the intermediary must have actual knowledge of the infringement and not just general knowledge,” Singh says. “The court further observed that in case of intermediaries, interim relief has to be specific and must point to the actual content which is being infringed. The court ordered the respondent to provide an updated catalogue of specific works and URLs containing the infringing content to the appellant. The appellant was also ordered tokeep an account of all such content as well as the details regarding the number of viewings to enable calculation of damages.”

Besides copyright infringement, intermediaries have been caught in trademark infringement suits and the courts have examined liability of e-commerce platforms in trademark infringement matters, she adds. “In view of the said provisions and judicial enforcement, we can safely conclude that content sharing platforms are being held accountable.”

Indonesia’s media sharing platforms also allow reporting on infringing content and encourage takedowns. “The right holders could file requests to the platforms directly to take down the infringing content. However, the practice of such reporting system and the speed of response from the platforms vary,” Kusumah says. “Some platforms appoint dedicated people to deal with infringement reports and takedown requests while some don’t. Therefore, we believe that a standardized level of response must be introduced by government agencies to ensure the same level of response among the platforms.”

 

Get up

While laws and regulations are in place for ISPs and content sharing platforms to deter infringement, video makers should still not sit around and wait for others to protect their work.

Based on the Indonesian Law No. 28 of 2014 on copyright, the creators must actively protect their creations against the infringers in order to achieve maximum protection, Kusumah says. “This is because the copyright law is a crime by complaint. The activities can be in the form of active monitoring actions initiated by the copyright owner, continuing discussion with platform through the e-commerce association and entering into MoUs with each of the individual platforms. We have seen this initiative undertaken by one of the largest software developers.”

There are a number of steps that creators can take to protect themselves against copyright theft, which is particularly prevalent in the online space, says Matthew Hayes, principal at AJ Park in Auckland.

“There are two key steps creators should take in the first instance. To the extent possible, they should mark their works with a copyright notice comprising the copyright symbol, followed by their name and indicate the year that the work was first published, such as: © John Doe 2020. For works posted online, that will usually take the form of digital watermarks in photographs and videos, and the notices are usually placed at the end or in the background of written works,” says Hayes. “Secondly, for online or electronic works, creators should make use of technological protection measures (TPM) to control the way in which the content can be used. Examples of TPMs include access control measures like passwords, paywall subscriptions, time limits for online movie rentals and the regional encoding often found on DVDs and games. TPMs can also take the form of read-only works, download blocking of streamed content and copy blocking on digital movies. In many cases, TPMs serve a dual purpose of not only enabling access to a work to be controlled, but also assisting in the monetization of the content.”

Besides the basics of ensuring that the ownership of content is suitably identifiable and access is controlled, it is important for creators to understand how they can enforce their rights. “In particular, when it comes to enforcing their copyright, creators should be looking at whether their works need to be registered in key markets where they have infringement problems,” Hayes says. “For example, to be able to take action in countries like China and the US, copyright must first be registered with the requisite administrative body. The costs of taking enforcement action can be prohibitive in many countries, but platforms like Alibaba, eBay, YouTube, Facebook and Instagram will act to remove infringing copies of online content and images. All of these platforms have robust policies and procedures for handling copyright infringement notifications and complaints. It helps to be familiar with these, and understand how they work and what information is needed to successfully use the complaint procedures.”

Finally, a good plan for taking regular action is required. “Control of content can be easily lost in the online world – once the rabbit is out of the hat, so to speak, control is often lost for good,” he says. “Prevention is key, but proactive enforcement action is also required. That means regularly monitoring online platforms and taking quick action when infringements arise will help reduce the damage done.”

In Turkey, copyright protection is mainly regulated under the Intellectual and Artistic Works Law No. 5846. As to Turkish copyright law, protection shall start with the creation and publication of the work to the public which meets the conditions under the Law No. 5846. Therefore, neither registration of the copyright owned work with any competent authority nor confirmation of the same is necessary to enjoy copyright protection, says Hande Hançar, a partner at Gün + Partners in Istanbul.

“Even though registration of the work is not required for the protection, it is still crucial to prove being the first creator of the copyrighted work in case of a dispute,” says Hançar.

For the ease of proof, there are several ways that should be considered by creators following their creation of the work, she says. “For instance, content creators can use ‘timestamps’ which can be obtained via online third-party service providers to identify exact time of the creation. Approval of the exact time of the creation and the details of the creator by a notary public and/or issuance of minutes by the notary public on the same can be another option for creators. Lastly, creators may also apply for the registration of their copyright with the Directorate General for Copyright, which is the competent unit of the Ministry of Culture and Tourism.”

However, Hançar warns, creators should bear in mind that this registration is simply a kind of copyright recordation – “nothing more, nothing less” – since the application is not examined by the authority through checking whether the applicant has the genuine right of ownership on the work. “Rather, it is merely a control of the procedural and the documental requirements. Registration with the directorate, therefore, should not be deemed as final evidence on copyright ownership,” she says.

 

Mingling

Nowadays, it is not difficult to see netizens using others’ copyrighted songs or films in their own creations. But while that has become a norm, is the usage of others’ work, mostly without permission, legal? The answer is typically no, and that such creators could be held liable for such unauthorized use.

In India, copyright subsists in three categories of works: original literary, dramatic, musical and artistic works; cinematograph films; and sound recordings. The word “original” has not been defined in the Copyright Act, 1957, but has derived its connotation through case laws.

“It is largely understood as a work that ‘owes its origin to the author.’ The work must originate from the skill and labour of the author and must not be a copy of any other work,” Singh says.

Singh notes that it is important to highlight that the word “original” is prefixed to literary, dramatic, musical and artistic works and not to cinematograph films and sound recordings, as the latter are works made by using the former categories of works. “For example, a cinematograph film is made by making use of a script which is a literary work. Though there is no express stipulation regarding ‘originality’ in respect of cinematograph films and sound recordings, copyright does not subsist in a cinematograph film if a substantial part of that film is an infringement of the copyright in any other work. Likewise, copyright does not subsist in a sound recording made in respect of a literary, dramatic or musical work if in making the sound recording, copyright in such work has been infringed.”

Another prerequisite of copyright protection is the fixation of work in a tangible form. The Indian copyright regime follows the fundamental rule of copyright law, laid down in Article 9(2) of TRIPS and Article 2 of WIPO Copyright Treaty, 1996, which says that copyright does not subsist in ideas and only protects original expression of the ideas, Singh says.

If a content creator wishes to use or mix copyrighted material or parts of it in his content, he has to seek permission from the owner. “Platforms cannot grant users the rights to use content owned by others,” she adds. “While YouTube warns its users that cover songs require permission from the copyright owners, it also provides features such as the YouTube’s Audio Library, which can assist users to discover material that can be used.”

Based on the Indonesian copyright law, creation of content with parts of other copyrighted materials such as a song or a film can be protected under copyright law since it is considered as a protected work for adaptation, arrangement, modification and other works resulting from transformation, Kusumah says. “Therefore, the creator must obtain a license from the right holder before mixing the content and upload it to YouTube or other online platforms.”

Pursuant to Turkish Intellectual and Artistic Works Law No. 5846, original pieces of work which bear the characteristics and originality of the author are protected if they fall under the scope of any of the following categories: works of science and literature, works of music, works of fine art or works of cinema.

Each category of work has sub-categories under Law No. 5846, says Mutlu Yıldırım Köse, a partner at Gün + Partners in Istanbul. Literary and scientific works cover the works that are expressed by language and writing in any form, and computer programs expressed in any form together with their preparatory designs, provided that the same leads to a computer program at the next stage; all kinds of dances, written choreographic works, pantomime and similar theatrical works without dialogue; all kinds of technical and scientific photographic works; all kinds of maps, plans, projects, sketches, drawings, geographical or topographical models and similar works; and all kinds of architectural and urban designs and projects, architectural models, industrial, environmental and theatrical designs and projects lacking in aesthetic quality.

Musical works include all types of musical compositions, with or without lyrics as subcategories.

Works of fine arts are defined as oil paintings or water colours; all types of drawings, patterns, pastels, engravings, artistic scripts and gildings; works drawn or fixed on metal, stone, wood or other material by engraving, carving, ornamental inlay or similar methods; calligraphy; silk screen printing; sculptures, reliefs and carvings; architectural works; handicraft and minor works of art, miniatures and works of ornamentation, textiles, fashion designs; photographic works and slides; graphic works; cartoons; all kinds of personifications, says Köse. “It should be noted that all the mentioned works should have aesthetic value to be protected as works of fine art.”

Cinematographic works are works such as films of an artistic, scientific, educational or technical nature or films recording daily events or movies that consist of a series of related moving images with or without sound and which, regardless of the material in which they are fixed, can be shown by the use of electronic or mechanical or similar devices.

“These categories are numerus clausus” – a limited number – “but sub-categories under each category of work can be expanded by way of legal interpretation depending on the conditions of each individual case and nature of the creative work,” says Köse.

It should be noted that each work that can be defined within the classifications would be capable of protection separately. “In a case where creators mix their content with parts of other copyrighted materials, generated work would also be protected itself if it bears the characteristics and originality of the author and can be defined within the above mentioned categories,” she says. “For instance, in the case of cinematographic works, the director, the composer of original music, the scriptwriter and the dialogue writer are joint authors of the work. Additionally, Law No. 5846 provides neighbouring rights to the performers and/or phonogram producers only if the moral and economic rights of the author are not prejudiced.”

Intellectual and artistic products created by benefiting from another work but that are not independent of such work are adaptations; they can also be considered as works under Law No. 5846 if they bear the characteristic of the person making the adaptation, which are created without prejudice to the rights of the author of the original work such as converting musical works, literary and scientific works or works of fine arts into films, or converting them into a form which is suitable for filming or for broadcasting by radio and television, she adds.

 

Get smart

Although the so-called 11th commandment, thou shalt not copy, is widely known, content creators still tend to hit the following pitfalls while making their videos.

Identifying the directly-infringing party may be problematic, especially where the infringement takes place on a digital platform (although in that case it may be possible to take action against the digital platform itself). The cost of enforcing copyright may be significant and disproportionate to the value of copyright work infringed, Hartland says. “Although the Federal Circuit Court is a lower-cost jurisdiction than the Federal Court of Australia, the costs of enforcing copyright can still be large. The unjustified threats provisions in the Australian copyright legislation mean that a false claim of copyright infringement could make the copyright owner liable for legal action in response. Accordingly, care, and preferably legal advice, is strongly recommended before making allegations of copyright infringement against an alleged infringer.”

In Indonesia, most copyright owners focus their actions on third parties of illegal reproduction and distribution through online platforms, including streaming.

“Based on our experience, many content owners or creators tend to inadvertently use pieces of music as backsound of their content while the music is copyrighted,” Kusumah says. “The creators are not aware and later find out that such action will be considered as violation of the copyright law.”


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