The practice of hyperlinking makes it easy for users of the Internet to locate content online. Many consider hyperlinks to be a digital equivalent of giving driving directions to a user to enable her to locate and reach another web site.[1] Hyperlinks can be of many types. For instance, surface links are hyperlinks that simply direct users to the home page of the target website. Deep links or embedded links direct users to the content located on such link without actually having to go through the home page of the websites that house the links. Framing is yet another example of hyperlinks in which content from the target web site is displayed on the anchor web site in a dedicated frame without actually taking the user to the target website. On social media platforms like Facebook and Instagram, the practice of tagging people in the comments section of a post creates a link to the profile of the person who has been tagged. Similarly, on Instagram one can be ‘mentioned’ in a comment or a post in order to ensure that she gets a notification of the same in her activity feed. Re-posting is another example that comprises of sharing content that has been posted/uploaded/shared by others.
In this article, the authors will consider whether or not the hyperlinking practices mentioned above constitute copyright infringement.
As per Section 2(ff) of the Copyright Act, 1957 (“the Act”), “communication to the public” means “making any work or performance available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing physical copies of it, whether simultaneously or at places and times chosen individually, regardless of whether any member of the public actually sees, hears or otherwise enjoys the work or performance so made available”.
Therefore, it is clear that, as per the Act, making any work or performance available for being seen, or heard, or otherwise enjoyed, is an essential ingredient of communication to the public. However, what is unclear is whether something that is already available to public at large on the Internet can be the subject matter of “communication to the public” as envisaged by the Act? In other words, whether something that is already available can be made available again? Before we delve into an analysis of the application of Indian law to the above-mentioned factual matrices, it would be helpful to look at some cases from jurisdictions outside India on this issue.
In the 2014 case, Nils Svensson and Ors. v. Retriever Sverige AB[2], the CJEU held that the act of creation of a link that directs a user to a protected work or service falls within the ambit of the term “communication to the public”.[3] On the other hand, if the link leads to works that are freely available on another website, and the communication is made through the same technical mode, the communication is not deemed “communication to the public”. The point of distinction between the two scenarios discussed above is whether or not the clickable links enable users to circumvent restrictions put in place by the site on which the copyright protected content is available. The reasoning of the court in the second scenario was that since there is no new public to whom the work is made accessible in case no such circumvention happens, there is no ‘communication to the public’. Subsequently, in the year 2016, in the case of GS Media BV v Sanoma Media Netherlands BV and Ors.[4], the CJEU held that linking of a hyperlink to unauthorized content protected by copyright and hosted by a third party may be copyright infringement.[5] The points of distinction, added in this judgment were, knowledge of the illegality and nature of the hyperlinking as regards profit-making.[6] In another case, namely, BestWater International GmbH v Michaeal Mebes and Stefan Potsch[7], the CJEU, considered “transclusion” or “framing” in the present context. Transclusion or framing is a technique in which an internet page is divided into frames, and content from other websites is displayed through inline linking in these frames in such a way that the original source or original environment of the content remains hidden from users.[8] Despite observing that this technique makes the work available to the public without even having a copy of it, in light of the fact that there is no ‘new public’ added to users to whom the work has already been communicated, it was held that transclusion or framing does not amount to “communication to the public”. In another recent landmark ruling[9], in Land Nordhein – Westfalen v Dirk Renckhoff, the CJEU drew a distinction between ‘re-posting’ of a copy of copyrightable content and hyperlinking the same. It was held that uploading a copy of a work which had originated from another website to a new website constitutes communication. The CJEU further held that such an act exposes the content to new public, and is, consequently, addressed to the public. The court opined that the copyright holder who authorizes such content to be uploaded on a particular website confers on Internet users the authorization to access the content on the site. It was held that when the content is being re-posted on some other website, such re-posting ventures beyond the restricted authorization given by the copyright holder and amounts to “communication to the public”.[10] In contrast, in the case of hyperlinks, users are directed to the initial website on which the copyright holder had consented for the said content to be located. Hence, in such a scenario where the content had initially been uploaded on a website with the consent of the copyright holder, hyperlinking to such a website does not amount to “communication to the public”. However, re-posting of such content on some other website amounts to “communication to the public.”
Another case, also from the CJEU, is Stichting Brein v. Ziggo BV[11] a/k/a the ‘Pirates Bay’ case[12] that relates to an indexor of BitTorrent files. The CJEU held that an operator that makes available, and manages, an online sharing platform must be regarded as “playing an essential role in making the works available” to Internet users. Therefore, making available and managing an online platform must be considered an act of communication. Furthermore, the CJEU held that the platform had several dozens of millions of peers covering, at the very least, all of the platform’s users. These users can access , at any time and simultaneously, the protected works that are shared on the platform. Thus, communication is “aimed at an indeterminate number of potential recipients and involves a large number of persons.” Therefore, as per the CJEU, communication is aimed at the public. Additionally, the CJEU was of the opinion that the works have been communicated to a ‘new public’ because the public was not taken into account by the copyright holders when they authorized the initial communication.” Thus, this case is significant because it has considered the technical intricacies of a peer-to-peer file sharing online platform and changed the dynamics of online copyright infringement. The last judgment of significance is Tommy Hilfiger Licensing LLC and Ors. v Delta Center a.s.[13] This case deals with the concept of ‘an intermediary whose services are being used by a third party to infringe an intellectual property right’.[14] It is settled law in Europe that an intermediary hosting IP infringing content regardless of any liability of its own needs to be made to take measures to prevent further infringement by the Member States.[15] In this case it was held that intermediaries providing services online should be construed as tenants of market halls who have sublet various spaces to market-traders some of whom use their spaces to sell counterfeits or in the present cases illegal materials, specifically infringing intellectual property rights.
It is pertinent to note that, in India, the Information and Technology Act, 2000 (“IT Act”) lifts the exemption from liability of intermediaries[16] in cases where the intermediary fails to expeditiously remove or disable access to a material being used to commit an unlawful act.[17] Also, exemption is applicable only when due diligence is observed by the intermediary while discharging its duties under the Act.[18] Extrapolating this, it can be said that if someone uploads infringing content on Facebook or for sale on Amazon, then, these social media sites/intermediaries will be responsible to expeditiously take action in order to take down the relevant infringing content or disable access to it in order to keep themselves within the exemption carved under section 79 of the IT Act.
Thus, analyzing the concept and practice of tagging someone in the comment section of a post shared on Facebook or Instagram on the basis of the case laws discussed above, the following pertinent points come to fore:
- A person tagging another does not actually make anything new available because the content was already accessible by the other person.
- No financial incentive is likely to be sought by the person tagging or mentioning.
As regards, the addition of ‘new public’ in communication, technically, no new public is added by virtue of such tags or mentions. However, given the sheer vastness of content available online, it is only fair to state that the probability of a person coming across random infringing content may be very less if such tagging, or so to say pointing out of exact location or making one aware of the very presence of infringing content within accessible bounds, is curbed by any means. It cannot be ignored that unrestricted tagging can have ripple effect leading to escalation of infringement to the extent of rendering laws and regulations ineffective.
It appears, from the above discussion, that intermediary liability may somehow be fastened to curb issues relating to copyright infringement. However, there is a delicate balance between the rights and entitlements of Internet users and what might or might not constitute infringement.
References:
[1] Klaris, Edward and Bedat, Alexia, Copyright Liability for Linking and Embedding: An EU versus US Comparison and Guide, < https://klarislaw.com/wp-content/uploads/klarislaw-copyright-liability-for-linking-and-embedding.pdf > accessed 26 June 2019
[2] Case C-466/12 ECLI:EU:C:2014:76
[3] Mariscal, Patricia, The Svensson case and the act of communication to a new public, (Kluwer Copyright Blog, 21 February 2014) < http://copyrightblog.kluweriplaw.com/2014/02/21/the-svensson-case-and-the-act-of-communication-to-a-new-public/ > accessed 3 July 2019
[4] Case C-160/5, ECLI:EU:C:2016:644
[5] Jehoram Cohen, Tobias, European Court of Justice: hyperlinks to unauthorized content may infringe copyright, (WIPO Magazine, December 2016, < https://www.wipo.int/wipo_magazine/en/2016/06/article_0007.html >), accessed 3 July 2019
[6] GS Media BV v Sanoma Media Netherlands BV and Ors. ECLI:EU:C:2016: 644 [47]
[7] ECLI: EU: C: 2014
[8] BestWater International GmbH v Michaeal Mebes and Stefan Potsch [17]
[9] Land Nordhein – Westfalen v Dirk Renckhoff, Case C-161/17, ECLI: EU: C: 2018: 634
[10] Rauer, Nils, CJEU: Re-posting content is a “communication to the public”, (9 August 2018, LimeGreen IP News, < https://www.limegreenipnews.com/2018/08/cjeu-re-posting-content-is-a-communication-to-the-public/ >) accessed 2 July 2019
[11] Case C – 610/15 ECLI: EU:C: 2017: 456
[12] Angelopoulos, Christina, CJEU Decision on Ziggo: The Pirate Bay communicates works to the public, (30 June 2017, Kluwer Copyright Blog, < http://copyrightblog.kluweriplaw.com/2017/06/30/cjeu-decision-ziggo-pirate-bay-communicates-works-public/ >) accessed 1 July 2019
[13] Case C-494/15, ECLI:EU:C:2016:528
[14] Tommy Hilfiger Licensing LLC and Ors. v Delta Center a.s ECLI:EU:C:2016:528 [21]
[15] Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, Art 9, Art, 11
[16] Section 79 of the Information and Technology Act, 2000
[17] Section 79(3) of the Information and Technology Act, 2000
[18] Section 79(2)(c) of the Information and Technology Act, 2000
Authors:
Sujata Chaudhri (Founder & Owner, SCIP Attorneys), Urfee Roomi (Senior Associate) and Amay Jain (Associate)
