Rise of social media leading to privacy and intellectual property disputes. Indian laws need teeth to deal with it


SSince the inception of social media, the web-based form of media has emerged with websites like Facebook, YouTube, Instagram and a plethora of others. Today, their reach and impact have reached more than half of the world’s population, with 4.62 billion users in January 2022.

Given this constant increase, the integration of humanity and social media will be much more important in the years to come. And it will increase intellectual property disputes related to social media and content ownership. To address these issues, countries such as the United States, Germany, and the European Union have already begun to implement rules and regulations to protect the interests of their citizens, specifically their intellectual property rights and their private life. These impose certain limits on companies and platforms and also give powers to the government in case of infringement. But India’s position on the issue of property rights in social media is still undefined and needs to be developed.

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Intellectual property protection standards

Intellectual property protects the original creation of the mind and intellect. Copyright will be protected under the intellectual property regime, no matter how and where it is developed. Accordingly, intellectual property protection will be granted to creations, inventions and ideas developed on social networks. It doesn’t matter that they were made on social networks. The nature of the protection, on the other hand, will be determined by the nature of the creation. A photograph, work of art, literature, film or any other work of authorship will be protected by copyright. A representation on social networks, such as a name, domain name or page name, will be protected as a trademark. A nice-looking product can be protected by a trade dress, design patent, or industrial design. And an application, tool, program, technique or other invention may be protected by a patent; and data, contacts, information and interactions related to any trade may be protected by trade secrets. The standards for protecting intellectual property on social media are not as extensive as those for other types of media, as they are still in the development phase.

However, some countries have prescribed specific rules to regulate social media ownership policies. The Digital Millennium Copyright Act, which amended US copyright law. The amendments included three key updates: creating protections for online service providers in cases where users infringe copyrights; encourage owners to provide wider access to their content in exchange for protection against unauthorized use of their content; and making it illegal to provide false copyright information. In contrast, India has been a bit slower and less thorough in enacting laws like the DMCA. India’s near equivalent of the DMCA is likely to be found in Section 52(1)(c) of the Copyright Act, which allows takedown notices to be sent to file-sharing websites to remove infringing content. Internet service providers, content hosts and other intermediaries may remove content when they receive a takedown notice.

The European Union (EU), India’s major trading partner, is also considering restricting social media activity, especially terrorist posts. The EU also introduced the General Data Protection Regulation (GDPR), which prescribes rules on how companies, including social media platforms, collect and use user data. In addition, it has also taken measures to protect copyright. Its Copyright Directive makes platforms responsible for ensuring that copyright-infringing content is not hosted on their sites, as it shifts responsibility to social media platforms for any copyright infringing content posted by their users. Thus, social media platforms should be extremely careful with the content they allow on their platforms. This directive opposes the “safe harbor” protection afforded to businesses and social media service providers by the Digital Millennium Copyright Act in the United States and by the IT Act 2000, and its corresponding rule, in India.

In 2008, Germany’s NetzDG law, also known as the Facebook law, came into effect, requiring companies with more than two million registered users in the country to set up procedures for reviewing complaints about the content they hosted on their platforms, and to remove anything that violates the policy within 24 hours. Therefore, even if someone has an intellectual property right to a content, authorities have the power to remove it without notifying the creator. Similar rules have also been issued in India under the Information Technology Rules 2021 (Guidelines for Intermediaries and Digital Media Code of Ethics) for Social Media and Over the Top (OTT) Platforms. , which require social media platforms to remove flagged content within 36 hours and also to trace specific posts back to the sender. The adoption of these rules has drawn some criticism of the invasion of privacy, as such rules have been shown to stifle innovation and create monopolies in a variety of industries.

Moreover, in India, the topic of content regulation has always been important due to the diverse structure of Indian culture in terms of religion, economic status, caste and language. The policies and laws that currently govern social media are the Copyright Act 1957 and the Information Technology Act 2000. The laws still do not cover many issues such as platforms with links to infringing content. If India wants to follow other countries in regulating property rights over social media service providers, it will have to take into account, among other things, the rights of users as to the exclusive right to their original content. Additionally, it is essential to provide prompt redress mechanisms for any copyright infringement, as provided for in the US Digital Copyright Millennium Act.

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Go forward

Since social media has given us all the ability to share content and become publishers, the regulations governing the use of intellectual property have changed significantly. Existing laws were written without considering social media. Only recently have policies been implemented to address privacy and data usage issues, but not for the protection of intellectual property assets. Other countries have developed and implemented their own regulations to protect the privacy and intellectual property rights of their citizens. The issue of intellectual property on social media is complicated for India due to its diverse culture, but it can be effectively dealt with by taking proper measures such as implementing policies similar to GDPR and DMCA that comply Indian requirements and are modeled according to the needs of the company.

There is also a need to test a transformative policy draft in the Indian environment for compliance and stronger intellectual property protection on social media which will give an idea of ​​what is needed and what can be improved in the protection of intellectual property assets on social media.

Dr. WM Dhumane is a DPIIT DPI Chair Professor and Mihir Shashikant Patil@MihirPatil0o9 is a PG degree student in DPI, both at the National Law University of Maharashtra, Mumbai. Views are personal.

(Edited by Anurag Chaubey)

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