Vishnumohan Rethinam

REMFRY & SAGAR, Partner

“Digital Construction –

choosing the right BRICS”

Raging IP issues online and how legislature and courts are laying the

foundation

3Vishnumohan Rethinam

NARUTO

Celebrity macaque which took selfies with an unattended camera

Raging battle to determine who owns copyright

Bright, open, priceless, know-it-all

KEYWORD ADVERTISING

REPURPOSING CONTENT

SOCIAL MEDIA/DATA PRIVACY

INTERMEDIARY LIABILITY

KEYWORD ADVERTISING

Advertising linked to words - offered to advertisers on the internet by providers

of online advertising services

•Initial interest confusion! Does ‘sophistication’negate liability?

•Is the ‘intermediary’ (search engine) liable?

•Tiffany v. eBay; Google France cases; BharatMatrimony Case

Keyword advertising… contd

•Consim Info Pvt Ltd v. Google India Pvt. Ltd. and Others

•Dispute b/w matrimonial websites involving intermediary

•SHAADI, MATRIMONY + State/Community specific websites; LIMITED LEXICON to describe a MARRIAGE!

•Trial Court refuses injunction; examines intermediary’s policies, considers unique nature of trademarks involved; Status quo at First Appellate Court

•RIPE BEFORE SUPREME COURT !

REPURPOSING CONTENT

Individual/Organization that gathers Web contentfrom different online sources for reuse or resale.

Free-wheeling on third party content; doesabsence of commercial offering negate aggregatorliability?

Enormous increase in internet traffic?

Cases involving AFP; NLA v. Meltwater; Star India

•Star India Pvt. Ltd. v Piyush Agarwal in March 2013

•Trial court ordered reporting of ‘hot news’ bydefendant (ball-by-ball updates in cricket matches) 15minutes after the plaintiff, who had paid a huge sumof money to obtain exclusive rights for this purpose.

•Appellate court reversed decision; match facts notprotectable under any law; Injunction would insidiouslydestroy the fundamental right to free speech…

Repurposing Content … contd

SOCIAL MEDIA/DATA PRIVACY

Terms of Use/Service; Privacy Policy

To what extent does Social Media balance privacy vis a vis its vast reservoirs of data and potential sharing with third parties

KARMANYA SINGH SAREEN AND ANR v. UNION OF INDIA AND ORS

Social Media/Data Privacy … contd

• Since terms of service of “WhatsApp” are not traceable to any codified law, writ (extraordinary) jurisdiction not available to petitioner under Article 226 of the Constitution of India.

• However, since issue of individual's right of privacy as a distinct basis of a cause of action is before Supreme Court, Delhi High Court allowed roll out of new privacy policy with following riders:

• Cannot share data of users collected up to September 25, 2016 with Facebook or others

• Completely delete all data of users who opt out of the app after the coming into force of new privacy policy and delete users’ data up to September 25, even of those who choose not to opt out and agree with new privacy policy.

• The court directed the government to consider the issue of functioning of instant messaging apps and check if it is feasible to bring them a statutory/regulatory framework.

Social Media/Data Privacy …contd

ACTUAL INTERMEDIARY

FOR LEGAL PURPOSES

Section 79 of the Information Technology Act, 2000 and Section 52 of the Copyright Act, 1957

•Delhi High Court granted injunction against defendant MySpace, on grounds of copyright infringement.

•Defendant facilitated content sharing by its users. Plaintiff alleged contributory copyrighted infringement. Defendant had no actual knowledge of infringement nor could track infringing material during uploaded; plaintiff refused to register with its rights management tool.

•Defendant’s arguments of safe harbour under Section 79 of the IT Act rejected on the basis that Section 81 of the IT Act states that nothing contained in the act can restrict anyone from exercising any right under the Copyright Act. The case is under appeal.

Super Cassettes v. MySpace

• constitutional validity of Section 79(3)(b) and relevantRules challenged before Supreme Court - grounds - thesewere vague, “over broad”, presented service provider with noopportunity to be heard - had no connection with Article19(2) of the Constitution (fundamental right to free speechand expression).

• Court compared analogous provisions of the IT Act wheregovernment’s power to issue directions for blocking publicaccess to information was tempered with a reasoned orderafter complying with procedural safeguards

• Thus, Section 79 was ‘read’ with such safeguards and only ifintermediary failed to execute a court order asking it toexpeditiously remove or disable access to certain material,would it be denied exemption under Section 79.

Shreya Singhal v Union of India

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