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Introduction
In 2019 the advertising tech unicorn, InMobi acquired Roposo. Roposo is a short video application that has recently seen a surge in its popularity due to the TikTok ban which came into effect. India’s largest music label T-series had filed a lawsuit in the Delhi High Court against Roposo claiming copyright infringement for using their copyrighted works and asked for permanent injunction restraining Roposo from continuing to infringe t-series copyright. Roposo investors Tiger Global and Bertelsmann have also been named in the law suit. T-series had alleged in its suit that the application is infringing its copyright content in many ways. It is alleged that Roposo is blatantly engaging in infringing its copyrighted work through creation of music library and extracting songs from users and using them for commercial gains. The music label had also stated in its suit that Roposo is removing the rights management information pertaining to its copyright songs in the ‘music library’ and is involved in knowingly distributing and broadcasting the infringing copies. The Delhi Court, in its order, had given a few days time to the defendant to sit with the plaintiff and ensure that the legal violations committed by it are corrected and legal compliance is ensured[2].
In 2019, a similar case of copyright infringement was filed by T-series against Share Chat, another social media platform. Later, Share Chat inked a licensing deal with t-series very recently. Due to this collaboration, the users of Share Chat and its video application, Moj, got access to the music collection of the T-series and now the social media platform can legally use the music of the t-series. Similar licensing deal was made by t-series with Facebook and Instagram. This piece analyses the legal issues surrounding this infringement claim.
Features of the application
It is very significant to understand the features of this application to have a grip on the legal implications of the infringement claim. There are two features which are of relevance for this present research:
- First is the collaborative feature of the application wherein it provides the users with two options of either taking the audio from the video posted by any of the users and make use of it in their respective videos or creating a duet video by mixing and matching several audios. This allows the users to use the content posted by other users that may or may not have any sort of infringing content.
- The second and the most contested feature in this application is the creation of an audio/music library. From this library, the users can use the music stored within their gadgets or phones as well as can select the audio from the curated list of songs and add the audio to their videos.
Why Roposo is Guilty of Copyright Infringement?
Intermediary- Safe Harbour Protection
Intermediary regulation exists in many different forms in India. The broadest of it is found under section 2(w) read with section 79 of the Information Technology Act 2002. The intermediary is defined as a person who on behalf of another person receives, stores or transmits the record[4]. Further, section 79 provides exemptions or ‘safe harbour’ protection from liability for third party information under a set of some circumstances. These circumstances include where “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.[5]
It is to be considered here whether Roposo can be termed as an ‘intermediary’ and could have claimed ‘safe harbor protection’ under the copyright law. As far as the first feature of the application is concerned which is the collaborative feature, Roposo is merely hosting the content which is being posted by the users. Here, it does not have any personal involvement. Thus, in the context of this feature, Roposo can be termed as an intermediary. However, as far as the second feature of the application is concerned wherein it creates a music library, it creates a curated list of songs from the music stored in the phones of various users. Here, Roposo is personally involved and is not doing this function on behalf of any third party. Thus, it becomes difficult to consider it as an intermediary in the context of this second feature of music library. In such a scenario, the creation of music library by Roposo without adequate licenses prima facie constitutes an infringement of copyright of t-series.
Safe Harbour Protection
While some may argue that Section 81 of the Information Technology Act excludes the instances of copyright infringement, there are judgments by the Bombay and the Delhi High Court which prove the contrary[6]. The safe harbour protection is provided to the intermediary under section 79 of the Information Technology Act. But there is a caveat here. Protection under this section can only be claimed when the act is not hit by section 79(3) of the Act. Section 79(3) provides that there must be an absence of ‘actual knowledge’ on the part of the intermediary and the intermediary should not have conspired or abetted or aided or induced the respective unlawful act[7].
Relevant Case Law
The Division bench of the Delhi High Court in My Space v. Super Cassettes [8] has specifically held that section 81 of the IT Act will be applicable even in cases of copyright infringement. The court also stated that only when the intermediaries fail to comply with the takedown notices which provide specific URL’s locations of infringing material, will they lose the safe harbour protection. In the case of Christian Loubatin v. Nakul Bajaj [9], the Delhi High Court has held that the intermediary is required to be an ‘active partcipant’ in the infringement to meet the standard of having ‘conspired or abetted or aided or induced’. It is difficult to meet this threshold when the intermediary only allows the users the platform to create content using each others’ videos. Therefore, very safely it could be concluded that safe harbour protection can be claimed by Roposo as far as the collaborative feature is concerned but not for the feature of music library.
Requirement of licenses for creation of music library
Copyright law specifically the concept of music licensing has a deep impact on the short video service applications. Any short video service needs an audio library which contains music or film dialogues or any other background noise to really get into the business. This audio library is not created by the users but the video service provider. Thus, here in this case, the provider cannot be termed as an intermediary and cannot further claim the safe harbor protection which is available to intermediaries under the Information Technology Act 2002. Therefore, any short video service application first needs to take adequate licenses (sound recording and publishing rights) from the respective music labels for the reproduction and storage of the copyrighted works. The major licensing terrain includes big companies such as T-series, Saregama India Limited, etc.
Conclusion
Certainly, the jurisprudence of liability of intermediary is not clear with many conflicting judgments often coming time and again. The conflicting standards of liability have to be settled so that rights of the intermediaries and the copyright holders are properly balanced. It seems that in the present case of copyright infringement claim of the t-series, Roposo has failed to show any level of legal diligence in their copyright efforts. T-series have also mentioned that it is definitely open to licensing its content and Roposo can go ahead and ink a licensing deal with the label after which it can sue its content without any hassle. These licensing obligations impact the user generated content to a great extend because the major players such as t-series charge substantial royalties.
References:
[2] CS(COMM) 347/2020.
[4] Information Technology Act 2002 Section 2(w).
[5] Information Technology Act 2002 Section 79.
[6] Information Technology Act 2002 Section 81.
[7] Information Technology Act 2002 Section 79(3).
[8] MANU/DE/3411/2016.
[9] CS (COMM) 344/2018.
