TWITTER'S NEST

How many times have you agreed to the Terms and Conditions without actually reading them? Probably all the time. Did you ever feel a brief moment of guilt for doing it? Everyone including the ones in the legal profession does not care enough to go through the terms and conditions before entering into the website. That is probably one of the biggest mistakes that you will commit on the internet.

>A recent judgment by the Paris Tribunal (Tribunal de Grande Instance, Décision du 07 août 2018, 1/4 social N° RG 14/07300).brought to public the Terms and Conditions of Twitter including the copyright-clause for user generated content.

DEGREE OF SPECIFICITY

The Terms of Service (ToS) forms a binding contract with each user. Huge doubts have been placed on Twitter’s ToS for being violative of Copyright laws. Item 3 of its ToS raises several questions: Item 3 says:

“You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours — you own your Content (and your incorporated audio, photos and videos are considered part of the Content).

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, or individuals for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such additional uses by Twitter, or other companies, organizations or individuals, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.”

>This clause seems to be a grave violative of the Copyright Act as well as the Intellectual Property Code of France. The Code has similar requirements as Section 19 of our Act which states that a license must specify each right transferred, the scope of its utilisation and the purpose of its transfer. The ToS of Twitter has failed in reaching the degree of specificity and thus, several portions of it were held to be null and void.

EXPLOITATION THROUGH EXISTING AND FUTURE MEDIUMS

Secondly, the clause also states that assignment allows for exploitation through existing mediums as well as medium developed in the future. This is contrary to Section 18 as the section says that assignments shall be made for exploitation only on mediums in existence at the time unless the particular non-existent medium is mentioned expressly.

By allowing exploitation in all mediums, it violates the provision and hence is unenforceable in India.

CONSIDERATION

Twitter’s ToS mentions that no consideration will be paid in exchange of the license to use the user’s contents. The 2012 Amendment to the Copyright Act has made it mandatory for royalty and consideration to be paid in case the user’s copyrighted work is being exploited. Therefore, that Twitter’s licensing of content, without paying any royalty or consideration is improper, and would render the assignment invalid.

MORAL RIGHTS

>The clause in the ToS mentions that it may modify or adapt the content and may make changes. Such an unqualified and absolute right to modify and adapt the content poses potential threat to the moral rights of the user under Section 57 of the Copyright Act.

Thus, this judgment should be a lesson for all the online websites to modify their privacy policy in order to give due consideration to the rights and interests of the users.

23 aug, 2018

Category : SOCIAL MEDIA

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