In a new low for Indian media, Aaj Tak (owned by the media conglomerate Living Media) has allegedly taken to using copyright claims to prevent criticism of its reportage by media watchdog Newslaundry.
On October 8, Newslaundry staff revealed that its YouTube operations had been stalled pending an enquiry into 53 separate copyright notices received by YouTube from Aaj Tak. The videos flagged (according to Newslaundry, not independently verified by us) pertained to Newslaundry’s commentary and criticism of Aaj Tak’s broadcast coverage of various issues, which included clips of the coverage.
Copyright Strikes and the New ‘SLAPPs’
YouTube’s copyright management system is notorious for mishandling copyright claims, not least because of the scale at which it must manage and navigate legal requirements. YouTube employs a copyright strike system, where if a copyright owner claims infringement over any material on its servers, it takes down the video, the alleged infringer receives a notice (or a ‘strike’), and, if the uploading account receives multiple strikes, YouTube terminates the account, removes all of their videos and permanently blocks them – serious implications, particularly for channels like Newslaundry for whom YouTube provides a significant viewership.
The notice-and-takedown system, unsurprisingly, is prone to abusive behaviour by copyright owners wishing to take down legitimate uploads, or, in many cases, fraudulent behaviour, which is increasingly becoming common in India. In the present case, the copyright takedown mechanisms has been used as a legal mechanism to take down commentary and criticism of a large broadcasting house’s news coverage, something quite squarely covered by copyright exemptions in Indian law. Section 52(1)(a)(ii) of the Copyright Act exempts from infringement ‘fair dealing’ with any work for the purpose of criticism or review. Fair dealing requirements under Indian law are quite broad, but one would assume they are purpose built for circumstances like this, where short clips from Aaj Tak have been taken and critical commentary added to it by Newslaundry.
The alleged claims of copyright infringement are unlikely to have any merit, and instead appear designed to be an abuse of the private enforcement mechanisms for copyright that copyright law around the world has facilitated, in conjunction with automated technologies like copyright filters, and economic incentives for large platforms like YouTube to take down speech as suits their own commercial interests (or whims). We have seen (and covered on this blog), the use of infringement claims to prevent legitimate criticism of large corporations and prominent personalities in the past, which usually amounted to intimidation, or in extreme cases, SLAPP lawsuits (known commonly as Strategic Lawsuits Against Public Participation), such as TATA’s suit against Greenpeace (Newslaundry itself recently faced a defamation SLAPP suit from the Times Group). The private, and often automated, process for policing copyright in the online world amounts to a new evolution of SLAPPs – Strategic Legal Algorithms Against Public Participation – where any aggrieved copyright holder can use and game platforms’ policies and algorithmic systems to take down legitimate criticism, being assured that its wrongful claims will not be penalised.
New Social Media Rules, But No Clarity for Copyright Claims
To an extent, the misuse of notice and takedown procedures is a function of the strange evolution of copyright takedowns and intermediary liability issues in India (which we have covered extensively here). Under the current law, as per the Delhi High Court’s interpretation in Myspace v Super Cassettes, online content hosting providers like YouTube must take down material per se on the receipt of specific information about any allegedly infringing material from a rightholder, or potentially faces a claim for infringement. This parallels the notice-and-takedown regime under the US Digital Millennium Copyright Act, however, without any of the procedural safeguards such as counter notice available under that law. More importantly, the court’s (non-)interpretation of the copyright safe harbours under Section 52(1)(c) denudes important procedural protections found under Rule 75 of the Copyright Rules, 2013, which includes an obligation to put-back content unless the rightsowner/complainant obtains a court judgement within 21 days of providing notice to the intermediary. As such intermediary liability for copyright continues to exist a strange twilight zone of ambiguity despite a recent revamp of rules for social media and other online intermediaries.
Finally, YouTube is to blame for this situation as well – its process for investigating claims and counter-claims of copyright infringement are completely opaque, and the company is known to rely on its automated ContentID copyright identification system, which has been criticised for its inability to fairly judge legitimate copying and fair dealing of copyrighted material – or otherwise procedures which inadequately protect user rights and fair use of copyrighted works – often leading to overzealous copyright policing.