By: Akhil Satheesh
When Seth Everman commented on Bad Guy, one of the 2020s most popular songs, no one expected it to blow up as much as it did. The comment, “I’m the bald guy” went on to rack up over a million likes on YouTube, and to the point that where Seth received a personalized award from the massively popular platform for his feat. Although impressive on its own, Seth stated that the dominos were still falling because his followers would hear of the comment and check out Billie’s song. Similarly, her fans would see the top comment and in turn pay Seth’s page a visit. Consequently, the spike in likes resulted in an inadvertent revenue outcome.. Although uncommon, this situation lays down the precedent underlining the value of a single online comment.
CAN COPYRIGHT PROTECTION BE EXTENDED TO COMMENTS?
The pertinent question now is determining the owner of this value i.e., who possesses proprietary rights to these comments. With regard to the rights pertaining to creative works, the law applicable in this particular scenario is the Indian Copyright Act, 1957. Under the Act, Section 13 states that original literary works are granted copyright protection. Literary works have been rendered several judicial definitions over the years by the courts. Literary works are essentially works expressed in print or writing to provide information, instruction or pleasure as literary enjoyment. In the case of University of London Press Ltd v University Tutorial Press Ltd, literary works were considered to refer to written or printed matter. Therefore, it can be ascertained that online comments come within the ambit of literary works and is afforded copyright protection as the same, being regarded the property of the original commenter.
CONSEQUENCES OF THIS INTERPRETATION
The implications of this copyright protection for comments are not so black and white. This is due to the fact that online sites such as blogs run by an original poster, involving the upload of their own original content, possess as many other separate copyrighted contents as there are comments on the page. Therefore, with each new comment, there will come into existence an additional copyrighted element, courtesy of the commenter, subsequently diminishing the absolute control that the owner initially possessed. Consequently, this puts the owner of the forum in a predicament presenting several hoops they have to jump through before sharing or recreating this particular page in any scenario, requiring them to procure the consent of each individual right holder, whose content exists in the page. Any online forum posting original content loses absolute control over the page the moment such commented content is published on it.
MEANS TO DETER INFRINGEMENT LIABILITY
In order to avoid being subjected to such restrictions, the easiest, but also the most limiting remedy would be to completely remove the provision for commenting, effectively running the forum as a museum, allowing for observation of the curated content but not providing for intellectual discourse, an integral aspect of any online presence. Outside of this extreme measure, efficient alternatives are to be sought, allowing for the usage of the comment, both by the poster and the webpage owner.
A tenuously acceptable defense for the page owner to engage in acts that would otherwise constitute infringement of the copyrights of the commenter, would be claiming the subsistence of an implied license between the commenter and the owner. Implied licenses form the foundation of the internet, allowing the smooth functioning of the same without debilitating legal limitations. These are unwritten licenses allowing parties to perform acts that otherwise require express permission, formed through the conduct of the owner. The United States District Court for the Southern District of New York, in the case of Jose Luis Pelaez V. Mcgraw-Hill Glob. Educ. Hldgs, stated that an implied license is considered to exist when the conduct of those involved is indicative of it, i.e., the party implicitly acts in a manner demonstrating an intent to grant a license. Therefore, when a party publicly posts a comment, the same can be construed as the person providing an implied license to the page owner to publish the comment to be viewed by the public. The primary limitation with respect to implied licenses is the fact that the legal contours pertaining to it are yet to be defined by any authority, be it judicial or legislative.
CONTRACTUAL LICENSING AND CC LICENSES: THE WAY AHEAD?
A proper middle ground would be to provide for the transfer of copyright in the comment to the owner of the page. Regarding transfer from the right-holder/commenter, as per Section 19 of the Act, this right can only be assigned in writing by the original right holder or his agent. The tediousness presented by the written agreement requisite can be circumvented, as the IT Act, with particular reference to Section 10A, renders legal validity to electronic contracts. This feature can be employed to provide standard form contracts (take it or leave it contracts, that do not leave room for negotiations), to be agreed to prior to commenting, with the agreement reflecting the assigning of copyright in the comments to the original webpage owner. This scenario represents an ideal win-win situation due to the fact that the web pages are freely enabled to use and reproduce all content created by them and presented to them as comments, and the authors of the comments, imbued with special rights under Section 57 of the Act, are still provided with the right to claim authorship, even post assignment of the right over such comments.
Another effective alternative is to impose a requirement for these comments to be presented under Creative Commons Licenses. These licenses enable the creators to determine how their copyrighted work is to be used by third parties. Therefore, if comments are put forth under a CC license, clarity is rendered regarding the permissions granted by the commenter to the page owner and additional permission is only required when the page owner needs to use the matter in a mode not envisaged under the CC license. For instance, the CC BY license is one of the most common licenses which facilitates the free distribution of copyrighted work, provided that the creator is given due credit.
THE YOUTUBE MODEL
With regard to the infamous YouTube comment that spawned this entire thought, YouTube subjects its users to a robust set of Terms of Service and states that although the users retain ownership of their content, YouTube is granted certain rights. These rights include the provision of worldwide, non-exclusive, royalty-free license to YouTube, to use such content, enabling them to reproduce, distribute, prepare derivative works, display and perform it, among other related purposes. Further, other users of YouTube are also granted a worldwide, non-exclusive, royalty-free license to access such content via YouTube and use it for all the aforementioned purposes, but such usage is limited to only being done through the features already provided by YouTube, such as video playback, etc. Other users are essentially enabled to use the content only within the parameters of the YouTube application. Although this is the case with YouTube, less commercial entities would not have such comprehensive Terms of Service, which are to be adhered to and as a result, would have to resort to the above-mentioned remedies in order to avoid unnecessary litigation.
Online comments are plagiarized, to an almost religious extent, with every fourth comment being a copy-paste iteration of an earlier one that amassed a sufficient number of likes. Although the copyrightability aspect of comments is a particularly niche subject, constantly overlooked as it has the potential to instigate an avalanche of legal claims as soon as it is addressed, the truth is that similar issues arise every day, and denial or ignorance of the same.
(Akhil is a law undergraduate at The National University of Advanced Legal Studies, Kochi. The author may be contacted via mail at firstname.lastname@example.org)
Cite as: Akhil Satheesh, ‘Copyrights and Comments: The Value of Opinions’ (The RMLNLU Law Review Blog, 04 September 2021) <https://rmlnlulawreview.com/2021/09/04/online-comments-copyright/> date of access