In this post our Spicy IP Fellowship applicant, Inika Charles brings us the latest update on the case against the government alleging that government contracts with social networking sites involving transfer of intellectual property rights were not in compliance with law. This is Inika’s second submission for the fellowship.
Google has recently assured the Delhi High Court that they do not earn any revenue from content uploaded on YouTube by the Government of India. This assurance was made in a PIL filed by K.N Govindacharya (the only published orders are available here). This petition, filed in 2012, deals with among other things the utilization of social media by the Government for official purposes.
The petition has raised the question of the nature of contracts entered into by the Government with social media. In reply, the only contract that the Government put on record was a content license agreement entered into with Google Ireland (for YouTube) in 2013, which provided for a non-exclusive, limited, worldwide and royalty-free licence to use Government content; and that there existed no separate agreements with other social media giants such as Facebook and Twitter. However, a perusal of the Facebook and Twitter Terms of Use signifies that identical licenses are provided for in the standard click and wrap agreements that were entered into by the Government while creating their accounts, effectively negating the need for additional contracts to be signed. (Read here, and here)
Google, in their affidavit, assured the Court that no revenue was earned as no advertisements appear on the content owned by the Ministry of Information and Broadcasting. However, no statements have been made by the other impleaded social media sites. This brings up the interesting question of advertisement revenue generated off user content by intermediaries. It is universally accepted that websites may host advertisements to raise basic revenue, and this doesn’t run counter to any applicable laws. Should the website be hosting other’s content, as is of contention here – the terms and conditions, more often than not, give the website the right use the content as it pleases. This, by extension, has been taken to include the generation of advertisement revenue. YouTube is known for its revenue sharing model, which gives the owners of the content a share in profits. Facebook and Twitter do not follow such a model, but there have been talks of Facebook sharing advertising revenue with content generators. Should this occur – the Ministry of Information and Broadcasting, as one of the many official social media accounts of the Government, will be able to earn revenue from their posts on Facebook.
The Petitioner contended that these contracts formed part of public records and surrendering or allowing third parties to use the IPRs arising therein for commercial purposes was a violation of Section 43A of the Information Technology Act, 2000. The Court, too, was of the opinion that perhaps there should be royalty paid, and construed these licenses as “akin to (giving) state largesse”. The Petitioner’s Section 43A argument doesn’t seem very viable – earning advertisement revenue of user content would not, either be a failure to “maintain reasonable security practices and procedures” or seem to cause “wrongful loss” to the Government – which are the conditions to be met to attract liability under this section. Additionally, public records would not qualify as the sensitive personal data or information that the section aims to protect. The agreements with these social media sites, whether standard, or separate as is the case with Google are binding, and giving them the right to make revenue off our content is perhaps a price the Government has to pay – along with the other users of social media.
The case will be heard again on the 27th of April, 2016, and it will be interesting to note how the Court responds to both, Google’s submission and the Petitioners arguments. It is however interesting to note that the Petitioner has completely disregarded his arguments against Facebook and Twitter by resting his case at the last hearing by stating that, in case no revenue is being earned by Google, then the petition may be closed.
Image from here
