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:
- http://timesofindia.indiatimes.com/tech/social/Are-pacts-with-social-media-sites-legal-HC-asks-government/articleshow/47195982.cms
- http://articles.economictimes.indiatimes.com/2015-05-07/news/61902286_1_social-media-sites-licence-indian-railways
- http://delhihighcourt.nic.in/
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