Wednesday 10 June 2015


Unwittingly Licensing IP on Social Media? India

Former BJP leader K. N. Govindacharya put the Modi government on the stand for their recent action of opening accounts on social media for governmental departments.
K.N. Govindacharya filed a writ petition[1] with the Delhi High Court in 2012 to raise various issues associated with regulation of social media sites such as Facebook, Twitter, Google etc. in India. The most prominent issues were the use of such sites by underage children, use of the sites by government departments, recovery of taxes from the websites on their income from operations in India.

All issues were adjudicated on by the bench consisting of Justice Badar Durrez Ahmed and Justice Sanjeev Sachdeva. The only issue that is left in this petition is with regard to the social media network usage by the Government/Government Departments. A point has been raised with regard to the nature of contracts entered into by the Government/Government Departments with social media sites such as Facebook, Twitter, Goggle +, etc. when they sign up on these accounts and click on ‘I Agree’ to their ‘Terms of Service’ absent-mindedly.
Govindacharya contended that the making account on various social media site for government departments is illegal. The terms and conditions of these sites clearly state that the data uploaded with them could be used by the networking sites for their gain. The issue of licensing of IP Rights in photographs and videos and other content was brought to the notice of the Court.
The Court in its order dated May 7, 2015 said “it appears that there are certain settings which the users of social media networks can opt for to restrict the usage of IP rights but it is also apparent that there could be grant of a royalty free license insofar as those IP rights are concerned.”
The Court questioned the Government on its awareness on this subject.  The court also said when the government gives royalty free license to Facebook without anything in return, “it was akin to (giving) state largesse” and asked Mr. Sanjay Jain, the learned Additional Solicitor General to place before it, by July 30, the exact nature of the contract it has entered into with the social media sites.
Our Inquiry
To bring clarity to this debate, a general review of the Facebooks ‘Terms of service’ was conducted and the following clause was uncovered:
2. Sharing Your Content and Information
You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:
For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
The above clause makes the picture quite clear. Whether governmental data or personal, everything is licensed to Facebook, royalty free unless the government is taking certain specific steps to safeguard their IP. The ASG appearing on behalf of Union of India requested for some time to place before the Court the exact nature of the contracts which have been entered into by the Government/Government Departments with the social media sites on the internet.
It shall be interesting to read the government’s reply in this regard on July 30, 2015.
Sources:
  1.  http://timesofindia.indiatimes.com/tech/social/Are-pacts-with-social-media-sites-legal-HC-asks-government/articleshow/47195982.cms
  2. http://articles.economictimes.indiatimes.com/2015-05-07/news/61902286_1_social-media-sites-licence-indian-railways
  3. http://delhihighcourt.nic.in/





[1] W.P.(C) 3672/2012.

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