INTELLECTUAL PROPERTY IN MEDIA

Definition

Media is the plural form of medium, which refers to any type of communication. This can cover anything from printed paper to television channels; social media encompasses art, news, sports shows, financial reports, educational content and many other forms of information. Digital systems produced social media, a new kind of mass communication, which passes through the computer networks.

The distribution of news, information, entertainment and advertising is followed by media as newspapers, magazines, television, video show, film or the age of old radio. Broadcasting is a part of mass communication that appertains to video and audio inputs propagated through various platforms. Broadcasting houses produce original content or buy the rights for broadcasting local and national information such as news, music programs, talk shows, movies and advertisements.

Copyright Protection

As a general principle, any original work related to literary, artistic, musical work, dramatic presentation, sound recordings and cinematograph film are protected inherently under copyright. No registration is mandatory but suggestive for better protection in the legal proceedings. In the Indian legal system, the copyright registration certificate is the valid evidence to claim the ownership when the dispute arises for the claim of original work.

The copyright grants an exclusive right to do or authorize some of the following acts:

  • To reproduce the work in any material form.
  • To distribute the copies of the work in public. .
  • To produce film or to do sound recording of the work. .
  • To perform the work in public or make the work available to public. .
  • To translate the work in any language or form. .

The Copyright Act 1957 was amended in the 2012, by introducing Section 31D in the Act making it mandatory for the broadcasting organizations desirous of communicating to the public by way of broadcast or by way of performance of a literary or musical work and sound recording, which has already been published, to do so subject to undertaking certain compliances. One of such compliances require the broadcasters to give prior notice, in a prescribed manner, of its intention to broadcast the work stating the duration and territorial coverage of the broadcast, and also pay to the owner of rights in each work royalties.

The term Communication to Public has been defined in the new act as “any work or performance available for being seen or heard or otherwise enjoyed by the public directly or by and means of display or diffusion other than by issuing physical copies of it, whether simultaneously or at places and times chosen individually, regardless of whether any member of the public actually sees, hears or otherwise enjoys the work or performance so made available".It has explained in the act that - the communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public.

Under the provisions of new act, “any broadcasting organization desirous of communicating to public....." may not be considered only radio and television broadcasting under the definition of "broadcast" but reading with "communication to public" broadly includes all kind of broadcast including internet broadcasting. Therefore, the provisions of Section 31D not only cover the radio or television broadcasting organizations, but also internet broadcasting organizations.

What is Social Media?

Social media is the term which refers to various websites and applications where the people share the contents instantly and effectively for mass publicity. Although, at present, most of the social media appear as apps on every smartphone but in reality it started with the computers. It is a very innovative platform where people can share photos, opinions, events, and experiences from day to day which has transformed our social connections at different level. Social media has become a vibrant tool for business growth and publicity. The fastest method to reach out to the customers or clientele in the business is the publicity through social media all over the world. It has become an integral part of the marketing strategy which usually see measurable results. But to do successful social media as marketing tool, a strong understanding of indigenous creativity is necessary for not infringing any kind of intellectual property.

Social Media and Intellectual Property

Facebook has significantly changed their policies regarding the information developers, such as the third parties can only the access the information, but are prohibited from selling and sharing data with others. The terms of service for any social media site are basically an agreement between the information provider and users and therefore, it should be carefully read. It frames the rules for using the various intellectual property rights involved with the media websites.

The information that a consumer or business owner wishes to circulate privately within a close network of friends and which is protected by the right of privacy but the social media sites may use the same information for the subsequent advertising for the targeted consumer or business owner.

In the case of Fraley v. Facebook, it has been revealed that when any user clicked a “Like” button on a Facebook page of any company, Facebook would generate an ad where the member’s name, profile picture, and an assertion that the person “Likes” the advertiser will be visible along with the company logo. For this, the plaintiffs argued that this violated their right of privacy. But Facebook defended that the users by agreeing to the terms of service, consented to sharing their name and profile picture for any use within the site.

This use can be even more explicit in trade secrets, lists of customers, suppliers, the names of key personnel, direct phone numbers, and email addresses for such key personnel which are highly important for the business, but it can be highly detrimental when a competitor obtains such information.

Broadcasting & Media Rights in Sport

The modern communications system of broadcasting the sports events has enabled the whole world to be involved with or watching the various sports events and such global happenings are protected by different forms of intellectual property rights for the interests of the sports organizers or the sports channels owners. Even the sporting clubs or the sportsman takes the initiative for protecting the various intellectual property rights under the laws and implementing the same worldwide.

The Copyrights particularly safeguard the rights held by the broadcasting houses for transmitting the sports events worldwide and such rights are created through various agreements between the sporting teams, televisions channels and other media houses. Television companies and media houses pay to the sports organizer a huge amount of money for the exclusive right to broadcast the popular sporting events live. Most of the sports organizations earn huge amount of money byselling the broadcasting rights and other media rights and thereby enable to finance major sporting events, revamping the stadiums or contribute to organize sport events at the grassroot levels. The royalties generated by selling the various exclusive rights, are invested in the costly organizational activities and technical infrastructure involved in broadcasting sports events to millions of fans all over the world.

Various Rights Protected

The Rome Convention of 1961 ensures the protection in performances for performers, in phonograms for producers of phonograms and in broadcasts for broadcasting organizations.

Performers Right

The actors, singers, musicians, dancers and those who create the literary or artistic works are protected against certain acts to which they have not consented, such as broadcasting and communication to the public of a live performance, recording or live performance or reproduction of the recorded performances.

Producers Right

Producers of phonograms have the rights to allow or restrict the direct or indirect reproduction of their phonograms. A phonogram is a letter or combination of letters that represent a sound. Rome convention defines phonograms as any exclusively aural fixation of sounds of a performance or of other sounds. When any phonogram is published before the public for broadcasting or any other form, a consideration should be paid to the performer and the producer of the phonograms.

Broadcasters Right

The broadcasters have the right to allow or restrict the rebroadcasting of the broadcasted performances, recording of their broadcasts and reproduction or the recording in any public show on payment of entrance fee.

Duration of Right

The protection should last for 20-year period, calculated from the end of the year in which (a) the fixation was made, for phonograms and for performances incorporated therein; (b) the performance took place, for performances not incorporated in phonograms; (c) the broadcast took place.

Most of the entertainment programs or sports events are presently propagated through digital communication systems for publicity and therefore, the laws related broadcasting rights to be updated for protecting the digital communications modes and curb the menace of piracy of broadcasting signals.

Any kind of entertainment program has become a global and billion-dollar industry and the intellectual property laws of any country can protect the rights for the media, sponsors and sports authorities. Live sports can be watched from anywhere in the world but the signal theft should be safeguarded for wider broadcasting. Signal piracy is the threat for the broadcasters for losing the advertising and sales revenues generated for exclusive rights to show live coverage of sports events, but also creating risks of reducing the revenues of sports organizations. As a need, the different national laws provide various options for tackling signal piracy, including shutting down illegal websites, broadcasting organizations have pressed for better legal protection at international level.

Interesting cases

Stephanie Lenzvs. Universal Music

In 2007, Stephanie Lenz, a young mother, uploaded the video of her child dancing with the tune Prince’s Music -Let’s Go Crazy, on the YouTube. The child is seen as dancing, while the song is played at the background.

Universal Music, the owner of the sound recording, was not happy for the unauthorized use of the music in the video and therefore, a DMCA take down notice was sent to YouTube. Subsequently, the video was removed from the YouTube. Subsequently, Stephanie sent a notice to YouTube claiming that the use of the song was fair use and thereafter, the video was again uploaded.

Being aggrieved, Stephanie brought a law suit against Universal Music for wrong doing as they overlooked to find whether the use of the song in the video was permitted under the law or not, which is statutory requirement to be followed before issuing a DMCA notice. On countering the statement made by Universal Music to stop uses of Prince’s music from YouTube, Stephanie submitted that Universal Music acted in bad faith without assessing the fair use of the video.

Court held that the assessment of fair use is necessary before issuing a DMCA notice for take down.

Agence France (APF) vs. Morel

The Photographer - Daniel Morel took some photographs of the catastrophic Haiti for earthquake and those photographs were posted on Twitter. Agence France (APF) found the same photographs on another person’s Twitter page. The second Twitter user posted those photographs after suppressing Morel’s authorship. Subsequently, AFP distributed those photos to Getty images from where Washington Post collected the photographs and published them.

Morel filed the case of Copyright Infringement against AFP and Washington Post along with Getty images. The Court held the news agencies guilty for copyright infringement and passed the order for paying the compensation amounting 1.2 million dollars for damages. The Court held that posting of photos on Twitter allows anyone to Re-Tweet or distribute among Twitter’s partners, but it does not allow third party to use them externally.