By Ananya Banerjee and Titiksha Sinha
The reputation of any brand or music in today’s world flashes quickly throughout the world through the digital platforms, having around 5.52 billion internet users in the world as of today and growing at an annual rate of 2.8%. With the rise in internet users, digital platforms regularly launch features to increase their traffic, one of which is Reels, launched in August 2020. It is a popular feature that allows the users to create short and engaging videos.
While these digital media platforms garner immense traffic daily due to these reels, they also have to take appropriate steps to prevent copyright infringement. A copyright infringement of a musical work is when someone utilizes, replicates or distributes copyrighted material without the consent of the author. To evade this, social media platforms such as X, Facebook, Instagram, etc., have implemented policies and measures to address these issues, such as filing takedowns, prevent unauthorised sharing, and filtering.
DIGITAL PLATFORM MUSIC LIBRARY – ABSOLUTE OR RELATIVE?
When a reel is uploaded on a digital platform, any use of copyrighted music content that the person uploading does not own or does not have explicit permission to use, can potentially infringe on the rights of the original creator.
Some artists and record labels have agreements (confidential, and therefore, not public) with platforms like Instagram, Youtube, X, etc., which allow users to use the music provided they are credited. Therefore, these songs are pre-cleared for use on the platform, meaning users do not have to worry about obtaining individual licenses. Therefore, there is no copyright infringement when some people use the music from the ‘music library’ available on these digital platforms. However, using music outside of this library may result in the removal of the content or muting due to copyright claims.
However, these Music Libraries do have certain restrictions on the usage of music, for instance-
- Business Account– There are limitations on how businesses can use copyrighted music, which may include the inability to use certain tracks in stories and reels for promotional/commercial purposes.
- Region Limitations- The availability of music can vary depending on the location, as licensing agreements may not cover all countries. Therefore, some songs may not be accessible in certain regions due to copyright laws.
IS CREDITING THE AUTHOR SUFFICIENT?
There are two scenarios, one, a reel is uploaded with the original audio of a different creator, not crediting the person. Not crediting the artist causes a threat to the individuality of the creator’s unique identity as it does not show the source of the creation. Furthermore, it directly attracts copyright infringement, unless it is fair use.
The second scenario is, a reel is uploaded with the original audio of a different creator, crediting the person without any express permission from the artist. You may think that the same is sufficient since credit is being given, however, this is also not sufficient to protect against a copyright infringement claim, or the economic loss to the owner.
While giving credit to the original author is important, it does not grant permission to use their work, nor does it absolve the party from copyright infringement. Therefore, to avoid infringement, the credit’s permission through licensing or explicit consent is required. Therefore, in case someone wishes to use the music, which is outside of the aforesaid Music Library, it is advisable to approach the copyright holder and ask for permission, as artists may be open to the same, or obtain a license.
‘ORIGINAL AUDIO’- TRUSTWORTHY?
Recently, the music in a music cover reel uploaded by a singer was re-uploaded by a third party with a different video, which was shown as a ‘original work’, even though it was not. This shows a lapse on the part of the digital platform, by not being able to enforce the copyright law with respect to unauthorized reproduction of music.
There is also another scenario, when a reel has “original audio”, it is likely that the content creator has procured the license of the track before uploading the reel, and someone else using such music could lead to copyright claims. Therefore, it is advisable to avoid using “original audio” from other videos if the source is unknown.
ROYALTY FREE MUSIC
As mentioned above, since use of copyrighted music for commercial gain is not covered under fair use, for sponsored or partnership posts, that are commercial in nature, it is advisable to use music from the Sound Collection of the digital platforms, which is an audio library of sound effects and royalty free music that you can download for your videos.
These collections provide access to a range of music that is cleared for use, helping to avoid copyright infringement issues. While most of the music in these collections are free-to-use, it is always better to double check the specific licensing terms for every track, as some tracks may require crediting the artist, or may have restrictions based on the geographical region.
FAIR USE V. INFRINGEMENT
Fair use allows limited use of copyright material for purposes such as commentary, criticism, or parody. Copyright infringement can also be avoided by creating a transformative work i.e., reference or copying certain part of the copyright work to create own new work with some value addition and new expression. However, the use of copyrighted music for commercial gain, even with minor edits, is not likely to be covered under fair use, such as ads, promotions etc.
15-SECONDS REELS- IS IT SAFE?
In case a person does not ask for the permission from the copyright holder and uses a copyrighted song for any quantity of time, the same will amount to infringement as the copyright law protects the snippets as well as the entire composition of the song. Therefore, it may lead to the content being muted, flagged or removed.
One possible defence against the same is De Minimus Defence, which states that if the quantity of the copyright work occurring is less, then the use may be excused. However, while considering the defence of de minimis, the size and harm caused by such infringing use has to be ascertained by the Hon’ble Courts. To use de minimis as a defence, the size of such use must be miniscule, and no significant harm should have been caused to the copyright owner by such miniscule use of the copyright work. It is also applicable when small portions of a copyrighted work may be used in a transformative manner that does not harm the original’s market value.
IMPLEMENTATION TOOLS
Different digital platforms such as Facebook, Instagram, etc., employ an automated system called Content ID to detect copyrighted content in the reels. If copyrighted music is detected, the platforms may, generally, do either of the following-
- Mute the audio.
- Remove the content.
- Issue a warning/suspend the account.
Some platforms may also monetize the content on behalf of the copyright owner, depending on the rights agreement, and allow copyright owners to set up automated monitoring to identify and manage unauthorized use.
Therefore, it is crucial to exercise caution when creating and sharing content on digital platforms, especially when producing reels. Infringing copyright can lead to serious legal consequences, including removal of content, account suspension, and even financial penalties. To avoid such risks, creators and users should ensure that they have the proper rights or licenses for any third-party content they use, including clips. Additionally, utilizing royalty-free or original material, and being mindful of fair use guidelines, can help maintain compliance with copyright laws. By respecting intellectual property, creators can protect themselves and foster a more ethical and sustainable digital content ecosystem.
Nikhil Dutt, Junior Associate at S.S. Rana & Co. has assisted in the research of this article.