Should ‘WhatsApp’ Be Held Liable For Not Reviewing Materials Being Shared On Their Platform That Infringes Authors’ Copyright?

INTRODUCTION

“The right to be attributed as an author of a work is not merely a copyright, it is every author’s basic human right”― Kalyan C. Kankanala,

What a creator creates from his imagination and his idea is a valuable asset for him above everything else. The idea of ownership of the ‘bundle of rights’ for is so profoundly embedded in the general public and the proof of it can be seen in the jurisprudence of property laws. Not just has man contrived laws to manage the domain of tangible items, intangible articles have additionally been perused into the extent of property. One of the prime instances of Intangible property is Intellectual Property (IP).

According to the World Trade Organization, ‘’Intellectual property rights (IPR) are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.’’ In other words, Intellectual Property Rights exclusively confer the owner of such rights the ability to reap the benefits of their creation and to stimulate the creativity of the human mind for the benefit of all by ensuring that the advantages derived from exploiting a creation benefit the creator.

This research paper deals with the issue of whether instant messaging applications like ‘Whatsapp’ is to be held liable for not keeping track and reviewing materials being shared on their platform that infringes authors’ copyright.

COPYRIGHT AND COPYRIGHT INFRINGEMENT

Copyright is a type of Intellectual Property right which confers upon the creator (or owner) a ‘bundle of right’ in respect of the reproduction of the work and other acts which enables the owner to get financial benefits by exercising such rights. According to the Indian Copyright Act, a copyright subsists in an original work which can be literary, artistic, dramatic, musical as well as cinematographic. Section 51 defines infringement of copyright generally. Infringement of copyright means the coping of the expression of a copyrighted work without the authority of the owner of such copyrighted work. Section 52 gives a long list of acts which do not constitute infringement of copyright.

WHATSAPP MESSENGER : INTRODUCTION AND THE PROBLEM

Under the Information Technology Act, 2000, and intermediary has been defined as “any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message”. The WhatsApp Messenger is a freeware and cross-platform messaging and Voice over IP (VoIP) service owned by Facebook with more than 1 billion users in over 180 countries. WhatsApp on 25th Feb 2017 announced that it has 200 million monthly active users in India. Considering the large number of active users on the messaging platform it is very probability of users posting or publishing copyright protected material. However, WhatsApp uses end-to-end encryption—meaning the company cannot read users’ communications; making it impossible for Whatsapp to know about all existing copyrights and to cross check every bit of information transmitted through its servers.

ANALYSIS OF THE PROBLEM

According to Section 51(a)(ii), any person who provides for profit, a place for such a communication which results in infringement of copyright and the said person has knowledge of such infringement is said to be liable for such infringement. Therefore, the elements required for someone to be made liable under Section 51(a)(ii) are:

  • the person must provide for profit any place for communication of information;
  • the communication should result into infringement of copyright of some person;
  • the person providing the place should have knowledge that the communication is infringing another’s

The debatable issue is third condition- is the knowledge of such infringement by ‘WhatsApp’. The scope of ‘knowledge’ in regards to section 51(a)(ii) is discussed in the landmark judgement of Myspace Inc. vs. Super Cassettes Industries Ltd, relieving MySpace from pre- screening user-uploaded content. The court held that Myspace Inc. has millions of users and even more files. It is impossible for Myspace Inc. to check and regulate each and every file and to know all the copyrighted material available in the world. Just because a song is uploaded in the website of the defendant, they cannot be said to have knowledge about whether the song is causing any infringement to someone or not.

Much of WhatsApp’s popularity derives from its enhanced security features, including default end-to-end encryption of messages to prevent any unauthorized access to personal communications. However, the end-to-end encryption coupled with large number of active makes it impossible for Whatsapp to know about all existing copyrights and to cross check every bit of information transmitted through its servers.

CONCLUSION

According to me, ‘WhatsApp’ has implemented all procedures so as to absolve liability of secondary infringement under Section 51(a)(ii) and Section 7910 of the Information Technology Act, 2000 absolves the liability of intermediaries in relation to any third party information if the intermediary can prove that the contravention by the third party was done without its knowledge and that the intermediary had taken due diligence for prevention of such offence, therefore it would be difficult to hold ‘Whatsapp’ liable for infringement of copyright by its users.

Further, asking whatsapp to break end-to-end encryption to cross check every bit of information transmitted through its servers would threaten user privacy and free speech; which might finally cause Whatsapp to lose its market as much of WhatsApp’s popularity derives from its enhanced security feature.

Author: Devanjan Chakravarty, LLB (IPR Hons.) Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, IIT Kharagpur, Intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any  queries please contact/write back to us at rishabh@khuranaandkhurana.com.

References:

[1] ‘WTO | intellectual property (TRIPS) – what are intellectual property rights?’ 

https://www.wto.org/english/tratop_e/trips_e/intel1_e.htm (accessed on 24th March 2019).

[2] Cornish W.R., Llewelyn D. & Aplin T., “Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights”, London, Sweet & Maxwell Limited, 2012, pp. 8.

[3] Section 13 of Copyright Act, 1957.

[4] Section 51, Copyright Act, 1957.

[5]Section 2(1)(w) of Information Technology Act, 2000.

[6] ‘WhatsApp- Wikipedia’ https://en.wikipedia.org/wiki/WhatsApp (accessed on 24th March 2019).

[7] ‘About WhatsApp’ https://www.whatsapp.com/about/ (accessed on 24th March 2019).

[8] ‘WhatsApp now has 200 million users in India- Technology News, Firstpost’ https://www.firstpost.com/tech/news- analysis/whatsapp-now-has-200-million-users-in-india-3698323.html , (Accessed on 24th March 2019).

[9] Delhi High Court My Space Inc. vs Super Cassettes Industries Ltd. on 23 December, 2016 https://indiankanoon.org/doc/12972852/ (accessed on 24th Mar 2019).

[10] Section 79 – Network service providers not to be liable in certain cases.

For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.

Explanation-

For the purposes of this section, –

  • “network service provider” means an intermediary;
  • “third party information” means any information dealt with by a network service provider in his capacity as an intermediary;

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