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No, the Internet is not like international waters. We speak to legal experts and content creators about where netizens should be vigilant
Truth has perhaps been the most obvious casualty of the Internet age, as copy-paste culture has permeated the creative process. And nowhere has this been more visible than in mass media.
With the lockdown adding to the woes of an already economically stressed sector, the print industry has become victim of fly-by-night operators who duplicate copyrighted material, often within seconds of its publication online.
After the lockdown, copyright and trademark violations have increased in the virtual world, says N Karthikeyan, cyber law advocate at the Madras High Court. “These days anyone with a mobile phone can start a YouTube channel. With no legitimate source for content, creators are stealing copyright-protected material,” he says in a phone interview. He also cites the growing incidence of fake domains being created during the lockdown.
These domains, which have names similar to the original versions, can divert the traffic from the real brands. Criminals use Search Engine Optimisation (SEO) techniques to ensure that the spurious sites get a higher Google ranking. “We are filing these cases separately under the Uniform Domain-Name Dispute-Resolution Policy (UDRP) at the Domain Name Dispute Centre, against the offender and the domain registrants,” says Karthikeyan.
Know your IP rights
Ignorance of the law can no longer be an excuse for content creators, says Tarun Khurana, co-founding partner and patent attorney of Khurana & Khurana (K&K) and of its Patent Research and IP Asset Management Firm, IIPRD, headquartered in Delhi. “Copyright is not just with respect to your written content, but also to numerous other form-factors such as using images, lyrics, soundtracks, videos, or parts of it, without legal permission or authority,” says Khurana in an email interview.
Think before you publish (for content creators)
- 1. Before posting any material, find out if it is copyright-protected or not. Even though copyright registration is not mandatory in India, once you publish an original work, copyright automatically comes into existence. “The person who is trying to copy this material, should know that an absence of copyright doesn’t give them a free hand to use it,” says N Karthikeyan.
- 2. When a First Information Report (FIR) is filed against a cyber criminal, they may be under the impression that they can approach the police station and get it cleared. But filing an FIR will also impact the person’s career, reputation and future prospects in matters such as foreign travel, so it is better to avoid breaking the law.
- 3. Before publishing, content creators should get a comprehensive plagiarism check done, says Tarun Khurana. “All the content media companies need some sort of legal backing since identifying Intellectual Property rights and ownership in a digital platform is not an easy task. It is essential to hire specialised IP attorneys who regularly conduct independent due-diligence on the content,” he says.
- From advocates N Karthikeyan and Tarun Khurana
He continues, “Whether you are a world renowned author or credited with starting an Internet craze like ‘Flossing’, the law of copyright protects your work and gives you legal recourse to prevent people from copying it and/or distributing copies without your permission. Social media platforms like Instagram, Facebook, Pinterest and Twitter lay down, in their terms and conditions, that when anyone creates an account on these platforms, they give away a licence for the handlers to use any content shared, royalty-free throughout the globe. Most users do not see these terms but content creators have to be aware to understand their IP rights. All content must be in accordance with the relevant sections of the Information Technology Act.”
Plagiarism and follow-through’s
“There are different kinds of plagiarism happening right now,” says R Prabhakar, vice president, Legal, General Administration, The Hindu, in Chennai. “One is the completelifting of our trademark and its contents, and selling the product as if it is from our parent company. These plagiarists are trying to capitalise on the public response to our original product for their own gain. Then there are those who copy our content without our trademark, in different platforms and channels, and pass it off as their own.”
Plagiarism has become so pervasive that even big name entities have been tempted. “I was surprised to see a photograph from my Instagram page used for an unrelated topic,” says Nirrali D Sanghvi, a hotel industry employee in Chennai who chronicles her experiences through her ‘The Gujju Nomad’ Instagram account. “I was shocked to see the photo of a mug that I had taken, being used in a major daily, without my permission.”
With the usual gate-keeping procedures of old media now consigned to (pre-digital) memory, publishing has become an instantaneous process. The increased amount and variety of information available online has however been accompanied by a loss of attribution.
“Trying to figure out who is ultimately responsible for lifting content is a challenge,” says Prabhakar. “The registered owners of the website say they aren’t responsible for the content. Or they will ask for paperwork which takes a lot of time for both sides to sort out. Many people often claim that they are only the ‘intermediary’ in the equation, and point us to others who supplied the material. When you look closely, these digital companies are based in Russia or China,” he says.
The lockdown has also hastened the use of e-paper format among print media companies in the absence of physical printing. It has also made the unofficial ‘borrowing’ of material more common. In May this year, the Delhi High Court directed owners of the Dubai-based messaging app, Telegram, to disclose the identity of users who were running channels on its platform to illegally share the e-paper version of the Dainik Jagran newspaper on a daily basis.
“If you are going to court, you have to figure out if it is a single person or the so-called intermediary who is the culprit. Many companies will try to seek the protection of the Intellectual Property Rights Act, saying that they have no control over the content. But then, they are supposed to have due diligence over what they are doing, just like any other company. These concepts have to be developed in the IT field,” says Prabhakar.
Cybercrime has always been borderless, says NS Nappinai, advocate, Supreme Court of India and founder of the non-profit organisation Cyber Saathi. A specialist in IPR since 1991 and cyber laws since 1995, Nappinai says that data theft and cybercrime in general have been evolving in nature and impact. “The Morris Worm virus attack was first reported in 1988. India got its first codified law in 2000. So it’s not like cybercrime is new; laws and codification are more recent. And over the last decade I think there has been exponential growth in this field,” she says, over the phone in Mumbai.
Despite the slow pace of the law, there are legal provisions to deal with cybercrime. “Many times remedies in law are missed even by professionals merely because they may not have the headings ‘ransomware’, ‘revenge porn’ or ‘cyber extortion’, but there are legal remedies,” says Nappinai. “Headings are not relevant to interpret law. It is what is contained in the provisions that matter. If you are going to spread a wrong message, then you are also emboldening the criminal.”
For content owners
- “In the creative space, rules of reusing and remixing of original work fall under the grey area of copyright law and no degree of vigilance can make an infringer-free environment,” says Tarun Khurana. But he advises content owners to take precautions like documentation of instances of use, registration of copyright, monitoring the activities of habitual infringers and being aware of the legal framework.
- Other tips include the use of digital watermarks, in which an image is embedded in the original work to help in the detection of unauthorised copying.
- Cyber security software like access control and copy control, aid in the detection of free or illegal use of original work. Blockchain technology is a highly secured decentralised public ledger that is used to record peer-to-peer transaction. In each transaction that occurs, the parties agree to details to encode it into the block of digital data which is uniquely signed or identified. It is considered an excellent technology to resolve the problem of copyright in the digital domain.
In 2019, the Delhi High Court introduced the ‘dynamic injunction’ that allows rights holders to engage the Joint Registrar of the Delhi High Court (an administrative position), to extend an injunction order already granted against a website, against a similar ‘mirror/redirect/alphanumeric websites etcetera.’ While this may speed up redressal, it also has some caveats. “Copyright often has been used as a tool by people who want to censor speech. So even if they don’t see a copyright violation, they may still approach the court. More often than not companies are willing to take down the content because they also have some liability on the website owner in case the infringement is upheld by the court,” says Anubha Sinha, senior programme manager and trained lawyer, at the non-profit Centre for Internet and Society (CIS), in Delhi. “Without seeing the merits of the complaint, people can decide to take down content indiscriminately and that obviously hurts the public interest.”
System reboot required
Nappinai feels that overhauling the system including the laws and judicial process will make law enforcement stronger. “The simplest and most immediate change you can bring is to the intermediary guidelines, which clearly set down inter alia that you cannot post content which violates copyright or any other proprietary right of intellectual property. But the remedy available now is that a takedown can happen only through a court or Government order. Where does that leave the victim?” she asks, adding that long-winded legal proceedings are now mandated to take down offensive content.
“If we are inviting Make in India programmes, we also have to strengthen our enforcement against intellectual property rights violations, not just posture with more laws. I hope that India will lead the effort to bring international cooperation to combat cybercrime and international enforcement mechanisms,” Nappinai says.