Public Domain: An Exception, Giving Due Credits: An Evident Fallacy

In layperson term, public domain is a space that is easily accessible by and to everyone without having to go through any restrictions or guidelines. However, from a legal perspective, public domain refers to a space where there are no intellectual property rights available to any original owner of content or work. This incidentally means that any and all content that is available within the public domain may be used without any restrictions whatsoever by any authorised and/or unauthorised user.

However, it is imperative to understand as to how original content or works enter such public domain. Works enter the public domain in different ways. Firstly, content and/or works whose copyrights have expired are said to be in the public domain. The life of a copyright work in India is the life of the original author plus an additional 60 years from the day of his/her death. Whereas, in the United States, the length of the term of copyright is the life of the author plus an additional 70 years. Hence, effectively, really old copyrighted works fall under the ambit of public domain.

Secondly, content and/or works are said to be in the public domain if the original owner/author willingly puts the same in the public domain before the expiry of copyright. This tool allows anyone to waive their copyright and place work directly into the global public domain, well prior to the expiration of copyright.

Thirdly, the last category of works that are said to be in the public domain are those works which were never subject to copyright protection in the first place.

Does giving credit to original copyright owner mean you can use copyright music on Social Media Platforms?

The assumption that giving due credits to the original copyright owner will save someone from the scope of copyright infringement is nothing but an evident urban myth. It is a very common practice to mention the name of the original songwriter, author, video creator, artistes and other rights holders while re-posting, reproducing or copying their content on digital media. While giving credit to songwriters, artists and rights holders is a nice thing to do, however, it doesn’t get you out of the teeth of the law. Meaning thereby, that even if one gives due credits to the original owner of works without even having the slightest of intention to infringe the original owner’s copyrights, one still needs a valid license or hold the rights to use their copyright content on digital media. Although there is no written rule that enables one to identify a song and see if it’s copyrighted. All that one can do is to search for individual songs’ copyright status. However, as a rule of thumb one should always presume that the content is the result of someone else’s intellect and there is an evident need to obtain a license to exploit that content in any capacity whatsoever.

An exception, however, is that in the event the content or work is labelled to be in the public domain that is free for use by all without obtaining any license whatsoever, then the same can be used, reproduced, reposted and/or copied by any user on digital media.

Policies and guidelines by social media platforms for protection of content

Various solutions to tackle the Copyright issues have been introduced in the recent past, such as watermarking the work, restricting access, blocking the copy-pasting features, and use of blockchain technology being the latest. Reposting anything without proper credit to the owner also amounts to copyright infringement. Social media such as Instagram and YouTube have features that allow reporting accounts that infringe copyright protection. In spite of all the technology people are still finding counter techniques to violate copyright, which is a red flag and demands proper legal action to avoid unauthorized use in the digital domain.

The electronic world has with time become a nexus of violation of copyright laws. Crimes such as downloading and uploading copyrighted material without proper consent, derivative works, hotlinking, and software piracy are only a few examples of how infringement of copyright is carried out in the digital era. Here are a few guidelines that have been put in place by the leading Social Media platforms for protection of original content against copyright infringement.

Instagram: Instagram has various software in place that detect and spot if copyrighted music is being used on a post. This is a completely automated process that regulates and prohibits the use of copyrighted content. However, Instagram has recently rolled out a new feature that pops up with a message that alerts users as a warning when copyrighted music is being used. The more diverse segment of Instagram is the feature of Instagram reels. This feature allows users to make 15-20 seconds short snippets with background sound recordings for which Instagram has entered into various statutory licensing agreements with the respective owners and rights holder. What is important to understand here is that Instagram allows the conditional use of copyright music in a live video and not while posting such content for easy accessibility by other unauthorised users on the platform. While Instagram Live videos are only available at the time of broadcast, it doesn’t mean you can use copyright music without any consequence. If one doesn’t have the correct authorised license to use the sound track then one may fall on the wrong side of copyright law during such live chat/show. Additionally, Instagram makes it a point to terminate or limit streaming of full-length sound tracks or movies.

Facebook: Facebook’s copyright policy restricts posting content that violates an owner’s intellectual property rights, specifically including copyright and trademark. If someone uses a summary or the whole of an original copyrighted work in their Facebook posts without the express permission and consent of the original owner then one can be held liable for evident copyright infringement. Since Facebook’s headquarters are stationed in California, United States of America, the provisions under the Digital Millennium Copyright Act (DMCA) govern any and all content on this social media platform. Additionally, if an unauthorised user often violates the copyright policy of Facebook, then Facebook reserves its right to disable their profile, page and/or group in view of Facebook’s Repeat Infringer Policy.

Snapchat: It has been often argued that Snapchat filters are ideas, so only the underlying source code of such filters would be protected. While it may be difficult to establish substantial copying of a source code, it will, however, be easier to suggest that the filter is in fact an artistic work, hence copyright protected. It is also a fact that Snapchat filters are only being used for personal viewing from end-to-end user interface. It thus results in absolutely no economic benefit to anyone whatsoever on the app. Therefore, it would also give way to high tracing costs in determining the extent of copyright protection and the ownership of the filters in the content that effectively belongs to the users. Thus, Snapchat is an entirely different Social media platform as compared to Instagram and Facebook and thus there are minimal to no risk of any copyright infringement.

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