TELEGRAM STORY: COPYRIGHT INFRINGEMENT VIA UNIDENTIFIED PIRACY *Chitranshi Verma, IIIrd Year, Lloyd Law College, Greater Noida, U.P

Introduction

In today’s technology-driven world, every country is individually working over the copyright rules to fit in for the digital age. Countries are looking over legislations that guarantee fair reward to the creators, secure the right for users and ensure responsibility towards public platforms Telegram is used by the majority of people around the globe who closely rely on fast and reliable messaging and calls. Business users and small teams like the large groups i.e. channels where powerful file-sharing options are available to each one individually. Channels are the main source for transmitting text messages to larger audiences. A channel can have a countless number of subscribers. Today, telegram is a very popular App amongst the youth as it has a lot of content available for free in different formats. The modern age of the internet and online content has left newspaper publishers, Movies and TV- series producer(s) devoid of their physical business. Telegram as a platform is free-to-access, open-ended and without any content filters.

Changing dynamics of Telegram in other countries

In past, Telegram has been alleged for the circulation of messages containing child abuse and obscenity. Globally, it was reported that terrorist organizations have exploited Telegram as a platform to spread propaganda.

Russia and Iran have already banned Telegram. In the absence of any content filter put in place by the intermediary, their platform has been exploited in an unlawful manner owing to which countries have banned the use of Telegram. Courts in the United States have time and again relied on the ‘Doctrine of Inducement’ to determine whether the distributor by any means promotes using its device/platform to infringe copyrighted material.

Liabilities for Unlawful Content – Platforms or Group Administrators

According to the Delhi High Court’s decision in case Myspace v. Super Cassettes, intermediaries (include online messaging service like Telegram) can claim ‘safe harbour’ from liability for copyright infringement, available under Section 79 of the Information Technology Act (IT Act) andrules made thereunder, the intermediary can claim safe harbour from liability provided it does not have ‘actual knowledge’ of the illegal (infringing) content.

However, at several instances, orders under Section 144 of the CRPC are issued to hold administrators of WhatsApp groups liable for ‘fake news’ and ‘unlawful content’ shared on the group. In criminal offences, there is a long history of jurisprudence around group liability (such as Criminal conspiracy (S. 120B IPC) or acts done in furtherance of common intention (S. 34 IPC).

The copyright law lays down two-pronged test to assess the infringement, firstly examination of the facts of the case to see if the elements of secondary liability under the Copyright Act are met and secondly whether the administrators or members of the group had knowledge of the infringement, or have contributed to the infringement by their act.

The Functionality of the Balanced Approach

Right to Privacy is a fundamental right and is at the forefront under Right to Life. Recently, the Indian government asserted Whatsapp to trace the sender of a particular message in light of the lynchings in the country due to fake messages circulated over WhatsApp. Whatsapp denied the possibility to trace the sender due to end-to-end encryption and in a way upheld the privacy of its users. Draft amendments to intermediary guidelines of the Information Technology Act released in December 2018 also require all internet platforms to ensure traceability of the origin of all content shared through them. In our context, tracing the sender is important to hold him responsible for infringement and to fix liability. The privacy issue is the only impediment in deciding answerability in such cases of copyright infringement.

It will be interesting to see how the government strikes a balance between the regulation of social media portals and the privacy of an individual. It will be a challenge for the government to overcome this blurred line of facilitating chat tracing for investigation and upholding user chat privacy through encryption.

Case Law

Newspapers are a daily source of information and entertainment that had ceased physical distribution in many parts of the country amidst the COVID-19 outbreak and ensuing lockdowns. In light of this, the sharing of information and news has become prevalent over social messaging apps. While doing so, it should be born in mind that one does not indulge in infringing activities.

JAGRAN PRAKASHAN LIMITED [‘Plaintiff’] vs. TELEGRAM [‘Defendant’].

  1. The PDF copies of the Plaintiff’s e-paper were made freely available through chat/channel groups on defendant’s messaging platform, which was otherwise accessible only to the plaintiff’s website subscribers.
  2. Despite serving multiple notices and a plaint highlighting this violation, the defendant failed to curb this illegal circulation on its messaging platform.
  3. Dainik Jagran has highlighted that the illegal chat groups on the defendant’s platform had a subscriber base of about more than 40,000 active users which was increasing regularly.
  4. Further, these groups continued to be active, sharing the plaintiff’s copyrighted material despite the removal notices being sent.

Hence, it is argued that rather than following the longer route of individual liability, the defendants should be made liable for being indirect contributors and infringing the IPR owned by the plaintiff. The court has directed the defendant to take down/block the telegram channels or any other similar channels infringing rights of the plaintiff with 48 hours of receipt of the order.

Conclusion

In the present case, to overcome financial hurdles, news publishers have started operating E-papers on a subscription basis. Telegram does not have a nodal officer or a registered office in India. So, the Information Technology Act, 2000 mandates removal of content on the directions of authorities. But still, it is not possible to enforce intermediary liability on Telegram. Looking over the current scenario, one has to work on the loopholes of the data. “India needs to draw a fine line between the personal and non-personal data – between public interest and IP Rights.” (Quote Source: The Print)

References

1 https://www2.deloitte.com/

2https://spicyip.com/2020/07/telegram-copyright-infringement-case-indias-chance-to-seek-inspiration-from-foreign-principles.html

3 https://iprmentlaw.com/2020/06/02/telegram-trouble/

4https://www.google.com/amp/s/lawschoolpolicyreview.com/2020/06/21/the-telegram-tale-copyright-and-trademark-infringement-through-anonymous-piracy/amp/

5https://www.mondaq.com/india/trademark/956584/unauthorized-circulation-of-pdfs-of-e-papers-dainik-jagran-case/

6https://www.firstpost.com/tech/news-analysis/whatsapp-can-trace-message-origin-iit-madras-professor-suggests-two-methods-7130961.html

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