[This post has been authored by Ujjawal Bhargava, a fourth-year student at the Institute of Law, Nirma University, Ahmedabad.]
[This post has been authored by Ujjawal Bhargava, a fourth-year student at the Institute of Law, Nirma University, Ahmedabad.]
[This post has been authored by Adhyasha Samal of the Hidayatullah National Law University, Raipur.]
[This post has been authored by Lavanya Jha (West Bengal University of Juridical Sciences, Kolkata) & Shreya Jha (Amity Law School, Delhi).]
The term Artificial Intelligence (AI) was coined by American computer scientist John McCarthy during the Dartmouth Conference on Artificial Intelligence in 1956. It was understood as a system of solving complex problems through reasoning, knowledge representation, planning, navigation, natural language processing, and perception. The shared conception regarding AI has been that it is a method of data processing, wherein the lack of involvement of a processor allows it to have an independent “mind”. Therefore, a processing device like a digital computer through which AI related tasks are accomplished can be viewed as a fundamentally detached, objective observer whereas intelligent behavior can be viewed as a determinate set of independent elements. AI’s primary features can be characterized as unpredictability, rationality, independence, efficiency and accuracy, thereby allowing it to create “patentable” inventions.
[This is the second part of a two-part article by Muskan Agarwal (National Law Institute University, Bhopal) and Arpita Pandey (National Law Institute University, Bhopal). Part 1 can be found here.]
Previously, the authors looked at the contradictions between blockchain and GDPR with regard to the principal obligations enlisted in GDPR. In this post, the authors will carry out a feasibility assessment of the solutions proposed.
[This is the second part of a two-part article by Muskan Agarwal (National Law Institute University, Bhopal) and Arpita Pandey (National Law Institute University, Bhopal).]
This is the first part of a two-part post that undertakes an analysis of the points of friction present between the fundamentals of blockchain technology and GDPR and of the various solutions that have been proposed to address the inconsistencies.
This post has been authored by Unmekh Padmabhushan, a final year student of National Law University, Jodhpur.
Machine learning is the process by which a piece of software is able to expand upon its capabilities and knowledge in a self-driven manner without any significant human input. This technology has been used, for example, in disaster warning systems and in driverless cars. Another scholarly use of such technology allows robots to derive patterns and significant correlations from enormous databases of texts in a manner impossible for human beings. This has led to led to an explosion in the ability of those working in the field of the humanities to analyse data like their natural sciences counterparts have done for years. 
A lot of people use YouTube videos to enhance their online articles or webpages. Some provide a regular link to the YouTube video while some provide with an embedded link of the same. While embedding, the video itself appears on the webpage and the user is not redirected to YouTube, in contrast to the previous case, where it only appeared as a link. Now, this is problematic because someone else’s video appears on one’s own webpage. A lot of people argue that this is similar to using someone else’s work for your gain without their permission, amounting to a copyright violation. However, there is ambiguity and a lot of questions are yet to be answered in such cases to prove an infringement. So, the broader question remains, is embedding a YouTube video legal?
Section 6 (c) of YouTube’s official terms of service reads:
“by submitting Content to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the content in connection with the service and YouTube’s (and it’s successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the service and under these Terms of Service.”
The most significant part in the aforementioned terms is that the owner of the video grants every YouTube user a license to access his content, and to use, reproduce, distribute, display, and perform such content as permitted through the functionality of YouTube and its terms of service. In other words, when any owner uploads his video, he has an option to either enable or disable embedding, and since by choosing to leave it enabled, he grants the user a limited license to embed the video.
Based on the Terms of Service as discussed above, one can ideally conclude that if there is an option in the video to embed, then there is nothing illegal in embedding such a video. However, the phenomena of embedding too comes with some conditions and restrictions attached to it. Section 4 (f) of the Terms of Service states, “If you use the Embeddable Player on your website, you may not modify, build upon, or block any portion or functionality of the Embeddable Player, including but not limited to links back to the YouTube website.”
Put simply, an embeddable player is made available on one’s webpage by inserting a code to a website, linking to a video that’s hosted at another location, and surfacing a video player without using any resources from the website itself. However, post this if there is any modification made to the embeddable player as had been generated, Section 4 (f) of the Terms of Service will be attracted. Such conditions and restrictions attached to embedding, can be better understood in light of the observations made by the courts of U.S. and EU in the cases discussed below.
In Flava Works, Inc. v. Gunter the Seventh Circuit Appellate District faced a situation where members of an adult site were listing videos from the paid area of the site on a separate social media bookmarking site. The bookmarking site would then create a video preview with the embedded code. The Court however found that no copy was being made by the social media bookmarking site, thereby resulting in the termination of the infringement claim. Put more succinctly; merely embedding the video on your site does not give rise to liability.
Further, in Perfect 10 v. Amazon the Ninth Circuit made it clear that in situations where just in-line links are concerned, there is absolutely no direct copyright infringement liability.
The ECJ however brought a new dimension to the question of infringement. In BestWater International GmbH v Michael Mebes it was held that that as long as the embedding doesn’t make the video available to new audiences, there is no infringement. In this case, the water filter ad in question had already been available to the entire internet on YouTube, so the court observed that merely embedding it didn’t make it available to any new audiences that previously didn’t have access to it. In conclusion, it does not constitute a public communication within the meaning of Article 3 (1) of the Information Society Directive as it does not appeal to a new public.
However, all of the above cases fail to address a situation when there is embedding of a video which is already infringing. Could this amount to contributory infringement by aiding and abetting?
Judge Posner in the Flava Works Case observes, “myVidster (the defendant) is not an infringer, at least in the form of copying or distributing copies of copyrighted work. The infringers are the uploaders of copyrighted work. There is no evidence that myVidster is encouraging them, which would make it a contributory infringer. If myVidster encouraged or induced that party to upload the infringing video, it would be a contributory infringer to that infringement. But users of myVidster who thereafter merely stream that infringing video are not infringers of the reproduction or distribution rights since they have made no copies.”
The observation made above does seem satisfactory to an extent, however, is very situational in nature as there was no evidence that someone actually made a copy using the link provided. Had users copied the infringing video using the link, the observation made by Judge Posner could have been different. To conclude, proving infringement in cases where a YouTube video has been embedded will depend, for the most part, on the factual situation concerned and will vary from case to case. As technology keeps evolving with time, there can never be a strait jacket formula for proving infringement. In any event, with regard to the question we have raised presently, yes, embedding a YouTube video is legal, as long as the video being embedded is not an infringing video in itself.
Freedom of speech and expression is the bellwether of the European Union (“EU”) Member States; so much so that its censorship will be the death of the most coveted human right. Europe possesses the strongest and the most institutionally developed structure of freedom of expression through the European Convention on Human Rights (“ECHR”). In 1976, the ECHR had observed in Handyside v. United Kingdom that a “democratic society” could not exist without pluralism, tolerance and broadmindedness. However, the recently adopted EU Copyright Directive in the Digital Single Market (“Copyright Directive”) seeks to alter this fundamental postulate of the European society by introducing Article 13 to the fore. Through this post, I intend to deal with the contentious aspect of Article 13 of the Copyright Directive, limited merely to its chilling impact on the freedom of expression. Subsequently, I shall elaborate on how the Copyright Directive possesses the ability to affect censorship globally.
The adoption of Article 13 of the Copyright Directive hints towards the EU’s implementation of a collateral censorship-based model. Collateral censorship occurs when a state holds one private party, “A” liable for the speech of another private party, “B”. The problem with such model is that it vests the power to censor content primarily in a private party, namely “A” in this case. The implementation of this model is known to have an adverse effect on the freedom of speech, and the adoption of the Copyright Directive has contributed towards producing such an effect.
The Copyright Directive envisages a new concept of online content sharing service providers (“service providers”), which refers to a “provider… whose main purpose is to store and give access to the public to significant amount of protected subject-matter uploaded by its users…” Article 13(1) of the Copyright Directive states that such service providers shall perform an act of “communication to the public” as per the provisions of the Infosoc Directive. Further, Article 13(2a) provides that service providers shall ensure that “unauthorized protected works” shall not be made available. However, this Article also places service providers under an obligation to provide access to “non-infringing works” or “other protected subject matter”, including those covered by exceptions or limitations to copyright. The Copyright Directive’s scheme of collateral censorship is evident from the functions entrusted to the service providers, wherein they are expected to purge their networks and websites of unauthorized content transmitted or uploaded by third parties. A failure to do so would expose service providers to liability for infringement of the content owner’s right to communication to the public, as provided in the Infosoc Directive.
The implementation of a collateral censorship model will serve as a conduit to crackdown on the freedom of expression. The reason for the same emanates from the existence of certain content which necessarily falls within the grey area between legality and illegality. Stellar examples of this content are memes and parodies. It is primarily in respect of such content that the problems related to censorship may arise. To bolster this argument, consider Facebook, the social media website which boasts 1.49 billion daily active users. As per an official report in 2013, users were uploading 350 million photos a day, the number has risen exponentially today. When intermediaries like Facebook are faced with implementation of the Copyright Directive, it will necessarily require them to employ automated detecting mechanisms for flagging or detecting infringing material, due to the sheer volume of data being uploaded or transmitted. The accuracy of such software in detecting infringing content has been the major point of contention towards its implementation. Even though content like memes and parodies may be flagged as infringing by such software, automated blocking of content is prohibited under Article 13(3) of the Copyright Directive. This brings up the question of human review of such purportedly infringing content. In this regard, first, it is impossible for any human agency to review large tracts of data even after filtration by an automatic system. Second, in case such content is successfully reviewed somehow, a human agent may not be able to correctly decide the nature of such content with respect to its legality.
This scenario shall compel the service providers to resort to taking down the scapegoats of content, memes and parodies, which may even remotely expose them to liability. Such actions of the service providers will certainly censor freedom of expression. Another problem arising from this framework is that of adversely affecting net neutrality. Entrusting service providers with blocking access to content may lead to indiscriminate blocking of certain type of content.
Though the Copyright Directive provides certain safeguards in this regard, they are latent and ineffective. For example, consider access to a “complaints and redress mechanism” provided by Article 13(2b) of the Copyright Directive. This mechanism offers a latent recourse after the actual takedown or blocking of access to certain content. This is problematic because the users are either oblivious to/ unaware of such mechanisms being in place, do not have the requisite time and resources to prove the legality of content or are just fed up of such repeated takedowns. An easy way to understand these concerns is through YouTube’s current unjustified takedown of content, which puts the content owners under the same burdens as expressed above. Regardless of the reason for inaction by the content owners, censorship is the effect.
John Perry Barlow had stated in his Declaration of the Independence of Cyberspace that “Cyberspace does not lie within your borders”. This statement is true to a large extent. Cyberspace and the internet does not lie in any country’s border, rather its existence is cross-border. Does this mean that the law in the EU affects the content we view in India? It certainly does!
The General Data Protection Regulation (“GDPR”) applies to countries beyond the EU. The global effect of the Copyright Directive is similar, as service providers do not distinguish European services from those of the rest of the world. It only makes sense for the websites in this situation to adopt a mechanism which applies unconditionally to each user regardless of his/ her location. This is the same line of reasoning which was adopted by service providers in order to review user and privacy policies in every country on the introduction of the GDPR. Thus, the adoption of these stringent norms by service providers in all countries alike due to the omnipresence of internet-based applications may lead to a global censorship motivated by European norms.
The UN Special Rapporteur had envisaged that Article 13 would have a chilling effect on the freedom of expression globally. Subsequent to the Directive’s adoption, the Polish government protested against its applicability before the CJEU on the ground that it would lead to unwarranted censorship. Such action is likely to be followed by dissenters of the Copyright Directive, namely Italy, Finland, Luxembourg and the Netherlands. In light of this fierce united front, hope hinges on these countries to prevent the implementation of censoring laws across the world.
A recent dispute between PVR and Justdial has highlighted the connection between various facets of networking and IP infringement that ensues through the use of regular networking tools like deep links, meta tags and frames. With the interim order by the Delhi High Court against Justdial, it seems that new age digital awareness is catching up with the old and still relevant IP laws in the country. Before discussing the facts of the dispute, it is relevant to discuss the implications of the networking tools forming the dispute.
The parties PVR Pvt. Ltd. and Justdial were parties to a non-exclusive ticketing agreement that gave Justdial access to PVR’s ticketing software to book tickets for the cinema halls. The agreement expired in August 2018 after two subsequent extensions in 2016.
The defendants, i.e. Justdial, continued to offer online ticket booking services even after the expiry of the arrangement. The bookings were redirected to the BookMyShow platform through deep-links. The plaintiffs (PVR) approached the defendants regarding the same and were orally assured that the service will be discontinued.
Subsequently, in January 2019, a third party informed the plaintiff that the defendant was still offering online ticket booking for PVR Cinemas. It made web pages that displayed images of the defendant’s cinema halls and used their registered trademark to give the impression that the two parties were still commercially associated. PVR’s registered trademark was used in meta-tags of the web pages that had deep links to the websites of authorised third-party sellers.
While these networking tools are a great way of maintaining a good web presence, they can also be a notorious means of stealing the rightful web traffic of websites. The issue of deep links arises when the web traffic of the homepage of a website is deviated to an internal webpage of the same that reduces the possible revenue for the websites from the advertisements on the homepage.
While meta tags are not visible on the website, it still is a contentious tool discussed extensively in global and Indian jurisprudence. It is very common that a business uses a competitor’s trademark in the meta tags of its own website so that the search engine indexes the website in the search results when the keyword is entered. This again, results in diversion of web traffic to the competing website.
However, some people use meta tags to describe their services without the mala-fide intention of diverting traffic and still become entangled in an IP infringement suit. While ignorance of the law is no excuse, unawareness about a particular trademark is often possible and may result in unfair punishment. For instance, a second-hand car dealer might use descriptors like Honda or Maruti to index his website in the search engine. While his act might lead the user to click the link believing it to be the intended website, (thereby qualifying the initial interest confusion doctrine) it will not materially harm the companies if the website states that the owner deals in second hand cars. The diverted web traffic will not be of any utility to the shop owner if he has no advertisements listed on his website and the user has to re-surf the web for the intended address. While consent from the party whose trademark has been used can be a way to evade the infringement, it is not practically possible for small businesses to receive permission from all the companies in the field. Hence, the dealer may find himself in a suit for infringing IPR of various companies, despite the mere intention to publicise.
An individual employing framing is likely to be held liable for trademark or copyright infringements if the material is modified without authorisation in the framed page or if the framed page endorses the parties’ commercial association when there is no such commercial relation between the two sites.
The jurisprudence around deep linking/meta tagging and IP rights has been varied. Canada, Denmark, Italy and the Netherlands have mostly ruled in favour of the party alleging IP infringement.
The Imax Corporation case, in the Federal Court of Canada, was an IP infringement suit filed by Imax against Showmax for framing web pages in a manner that would convey commercial connections between the two parties. The Court, in this case passed an injunction against the defendants due to harm caused to the plaintiff’s goodwill and reputation.
The Courts of Rome and Milan have ruled in favour of the plaintiffs in cases of deep linking and framing web pages that could confuse users as to the relation between the parties. The Court of first instance Leeuwarden, a case adjudged in Netherlands followed similar rationale as discussed above.
However, cases in USA tend to sway both ways. While the Ninth Circuit Court in the Brookfield Communications case injuncted the defendant, West Coast Co. from using “moviebuff.com” which would have infringed on their trademark of ‘Moviebuff’. The Court discussed the doctrine of initial confusion according to which when the user browses the internet, the link by west coast could create a confusion in the mind of the user about Brookfield’s Moviebuff website.
On the other hand, the District Court of California, in the case of Ticketmaster Corporation held that Microsoft’s unauthorised deep linking of its ‘sidewalk.com’ to Ticketmaster’s events pages circumventing the plaintiff’s homepage did not constitute unfair competition or passing off because the ultimate sale of tickets was done through the plaintiffs. The present controversy between PVR and Justdial is similar to the Imax and the Ticketmaster’s Case.
The Jurisprudence around meta tags/deep links and IP infringement in India has been pro-plaintiff. The Court has followed a similar reasoning as was discussed in the global scenario in various Indian cases like Mattel, Inc, Consim Info Ltd. vs Google, Kapil Wadhwa vs. Samsung, and Christian Louboutin.
However, in cases of meta tagging, the Court has also accepted the defence for use of meta tags by competing businesses. The Madras High Court discussed “nominative use” of meta tags while referring to some cases of the Ninth Circuit in USA. The Court laid down the following parameters for a meta tag to qualify for nominative use:
However, these conditions are quite onerous to prove and hence, in practice, Courts often rules in favour of the party alleging infringement. While this protects the goodwill of the plaintiff, it invariably restricts the bona fide users of trademark who use the trademarks for purely descriptive purposes.
In the present dispute, between PVR and Justdial, the Court has passed an order holding it to be a prima facie case of infringement and passing off in favour of the plaintiff. It has said that unless an interim injunction was passed, the plaintiff would suffer irreparable harm and hence, restrained the defendants from using the registered trademark for PVR or any deceptive variant.
This dispute provides an opportunity to the judiciary to instate guidelines to regulate the use of different networking techniques and prevent piling of litigation. It should be acknowledged that IPR awareness in relation to the use of the internet is not enough and explainers for different avenues that internet provides for proliferating e-business and regulations around them to ensure a reduction in IPR suits would help.
In favour: Oppedahl & Larson v. Advanced Concepts, United States District Court for the District of Colorado, Civil Action Number 97-CV-1592 ; Playboy Enterprises, Inc. v. Netscape Communications Corp., 354 F.3d 1020 (9th Cir. 2004) ; Nissan Motor Co., et al. v. Nissan Computer Corp. 378 F.3d 1002 (9th Cir., 2004) ; SFX Motor Sports Inc., v. Davis, 2006 WL 3616983.
Against: Bijur Lubricating Corp. v. Devco Corporation 332 F.Supp.2d 722, Civ. No. 00-5157 (WHW) (D.N.J., August 26, 2004) ; Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195; 72 U.S.P.Q.2d 1200 ; Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 2007 U.S. App. LEXIS 11420, 99 U.S.P.Q.2D (BNA) 1746, Copy. L. Rep. (CCH) P29,380 (9th Cir. Cal. May 16, 2007); Kelly v. Arriba Soft Corp. (U.S. Court of Appeals for the Ninth Circuit, July 7, 2003) 336 F.3d 811.
Web crawling is a process by which programs, which are colloquially known as ‘web spiders’ or ‘web robots’, browse the World Wide Web in a methodical and automated manner in order to index information found on every web page they come across. Many legitimate service providers, including search engines, employ web spiders to provide up-to-date information and data to their users.
Web crawling results in the creation of an index of web pages, allowing users to send queries through a search engine and provide links to the webpages that match the queries. The index is a list of entries which consists of key words, titles, headings, meta data etc. which were taken note of by the web crawler and addresses of the webpages on which they were found. Web crawling also enables archiving of webpages, which involves storing and cataloguing large sets of webpages on servers which are connected to the internet and updating them periodically.
Thus, any potential contravention of the Copyright Act, 1957 (‘Copyright Act’) must be evaluated against the aforementioned uses and the nature of information indexed, stored or cached in the process of web crawling. Under Section 14(1)(a) of the Copyright Act, ‘copyright’ is defined as an exclusive right subject to the provisions of the Copyright Act, to do or authorise any of the stipulated acts in respect of a work or any substantial part thereof. Under Section 51(a)(i), a copyright is deemed to be infringed when any person, without a license granted by the owner of the copyright or the Registrar of Copyrights under this Act does anything that is an exclusive right conferred upon the owner of the copyright.
Firstly, it would be pertinent to discuss the copyrightability of information or data which is getting stored, cached or catalogued through web crawling. Courts in India have placed a heavy reliance on US copyright jurisprudence, to hold that copyright does not subsist in raw facts, data, ideas, information etc. Feist Publications Inc. v. Rural Telephone Service Co. Inc, cited with approval in Eastern Book Company v. D.B. Modak, held that facts are not copyrightable since the sine qua non for copyright is originality. “Original”, as a term used in copyright, means that the work is created by the author independently and that it possesses at least some degree of creativity. In R.G. Anand v. Delux Films, the Supreme Court propounded that a mere idea cannot be the subject matter of copyright.
Therefore, a contravention of the Copyright Act would firstly depend upon the material which is collected by the web crawler. A web crawling action which simply results in collection of bare facts, raw data such as historical information, data captured by sensors, machine inputs, information pertaining to unclassified commercial transactions etc. cannot be copyrighted. Hence, indexation, storage or usage of such data or information in any other form will not constitute a contravention of the Copyright Act. However, if the crawler caches or uses copyrighted works hosted on webpages, then it will invariably constitute a contravention of Section 13(1) of the Copyright Act which states that a copyright shall subsist in original literary, dramatic, musical, artistic works, cinematographic films and sound recordings.
Secondly, a contravention of the Copyright Act would largely depend on the nature of web crawling being carried out by a company. If the scope of web crawling activities is only limited to creation of an index which is used to provide the users with the location of webpages which contain the relevant information required by them, then it should not result in a contravention of the Copyright Act. Essentially, any index created through web crawling contains billions of webpages and is well over 100,000,000 gigabytes in size. Such an index is similar to an index in the back of a book i.e. with an entry for every word seen on every web page indexed. When a web page is indexed, it is added to the entries for all of the words it contains. Thus, the web crawler by indexing web pages performs a limited role of directing the users to webpages of their choice by making the URL of such pages available to them.
The key question which needs to be then asked at this juncture is how the work is being made ‘available’ to the public. Under Section 2(ff) of the Copyright Act, “communication to the public” means making any work available for being viewed by the public by means of display or diffusion, without issuing copies of the work, whether or not any member of the public actually views the work. Copyright is deemed to be infringed if any person, who is not the owner of the copyrighted work indulges in communication to the public of any work.
Although there are no precedents in India, in my opinion the judgment in Perfect 10 v. Amazon.Com would be pertinent. Herein, the US Court of Appeals for the Ninth Circuit held that just providing HTML instructions for the location of copyrighted subject-matter would not by itself cause the copyrighted subject-matter to appear on the user’s computer screen. The HTML merely gives the address of the copyrighted subject-matter to the user’s browser. The user’s browser then interacts with the computer that stores the copyrighted subject-matter. It is this interaction that causes the subject-matter to appear on the user’s computer screen. Essentially, the web-crawler will only display to the public the location and address of the webpages hosting the copyrighted work rather than the work itself. This would not amount communication of the work to the public under Section 2(ff) read with Section 51(a)(i) of the Copyright Act as a web-crawler does not host the actual work thereby making it available to be seen or heard or enjoyed by the users directly or by means of display or diffusion.
Having said that, there are other scenarios in which web crawling may amount to contravention of the Copyright Act. If a web spider or a bot in the course of crawling through web-page stores or caches web pages or even entire websites on servers connected to the internet, it will constitute a direct contravention of the Copyright Act under Section 51(a)(i). Such an action would amount to making copies of and storing subject-matter in which copyright subsists. The Copyright Act equates the storage of any work in any medium by electronic or other means to reproduction of the work in any material form.
Henceforth, a potential contravention of the Copyright Act would largely be dependent on the kind of content hosted by the websites which are crawled upon and the nature of the web crawling itself. Any web crawling action concerned with indexation and storage of bare facts or raw data is legitimate. For works which are original and presuppose creativity, an infringement would be dependent on the nature of the web crawling action. If web crawling is limited to providing the location of the webpages after matching them with the queries of the customers, then it should not constitute a contravention of the Copyright Act under Section 51(a)(i). However, storage or creation of copies of web pages hosting copyrighted works would invariably contravene the Copyright Act.