Facebook and Google Using Snippets- Copyright Attack

INTRODUCTION

The world has changed tremendously if we compare the contemporary generation to the primitive Stone Age. Who would have believed in our earlier period of civilization that we would fly in an airplane? Who would have thought that their future generation would communicate with each other by a single click on a device? One can delineate numerous examples of the technological advancement that humans have been experiencing every passing year which no one had ever dreamt of in the primitive stages of human existence. Inter alia, introduction of Internet in 1983 became the cutting edge technology of all times. It gradually changed the face of this world and inadvertently permeated in every section of the society. The two most imperative branches of the internet world are Search engine and Social media. As I write this article, 50.64% of the total world population is scamming through social media. [1]

These search engines and social media benefit our day to day life in numerous ways. But as we know, nothing interesting is ever completely one-sided. The other side of the coin highlights numerous legal and ethical issues that have been in existence since the inception of these platforms. The latest dispute between Australian government and uncrowned kings of their respective platforms - Google and Facebook, gave rise to the copyright issue. Whether snippets from the publisher’s content used by the tech giants amounts to copyright infringement or is there any legal shield that protects them? The author will try to throw some light on this issue while comparing copyright laws of USA, Australia and India.

“It is like forcing car makers to fund radio station because people might listen to them in the car- and letting the station set the price.”

- Nick Clegg

This was the statement given by the Vice President of global affairs amidst the dispute between tech giants and news outlets. The interesting debate that has emerged in Australia is that the Australia’s News Media and Digital Platform Mandatory Bargaining Code( hereinafter referred to as The Code) will force platforms like Facebook and Google to pay local media outlets and publishers to link their content in news feed or search results.[2] This regulation is the aftermath of the Digital Platform Inquiry Report of 2019 prepared by the Australian Competition and Consumer Commission. The report highlighted a host of problems faced by the news media due to digital platforms such as imbalance in the market power, difference in financial strength, absence of media regulations to these platforms etc. [3]

The strife between the tech giant’s and the government turned ugly, to the extent that Facebook decided to shutdown the availability of news on its platform in Australia, leading to hue and cry in the state. If we get down to the nitty-gritty of the problem then copyright issues have its own share of arguments.

Copyright Law – A safety valve?

Copyright law is a branch of Intellectual property law, aims at promoting creativity and innovation in order to contribute to economic and societal development. Every country has its own copyright law due to which these tech giants face new challenges as they enter into different jurisdictions.

News contents are protected under copyright law if they are original and in intangible form. If the originator applies skill and judgment[4] to prepare the news content then it qualifies as “original work”.

Since the originator’s work falls under the copyright protection, this means he enjoys exclusive rights on the work. In other words, the work cannot be used or copied by another person without owner’s authorization. But there are few exceptions to circumvent this. These exceptions vary from country to country. For instance, Australia follows Fair dealing doctrine and on the other hand, the USA follows fair use doctrine. These two doctrines overlap with each other but their foundation is fundamentally based on different concepts.[5]

Australia and Fair-dealing

Australia follows fair-dealing exceptions which are provided from Section 40 to Section 44F of the Copyright Act, 1968[6]. The fair-dealing exception are set in law and exhaustive in nature. Some fair-dealing, inter alia, are: non-commercial research or private study, criticism or review, parody or satire, reporting current events, provision of legal advice etc.

In the current contentious issue, none of the fair-dealing exceptions mentioned under the Copyright Act, 1968 permits the tech giants Facebook and Google to use snippets or excerpts of the original contents owned by the publishers.

The USA and Fair-Use

The Fair-use doctrine followed by the US Courts is more general defense than fair-dealing. Four factors are examined to ensure whether the act falls under the defense of fair-use. Let us asses these four factors in the current legal conundrum.

1. Purpose and character of use- This first factor is very crucial as it determines whether the new work has molded and created something new or it has just blandly imitated the original work for commercial purpose.


Facebook and Google use snippets which gives the relevant information to the users without arriving on the publisher’s page. At the same time these tech giants tend to monetize this by posting their ads. [7]


2. The nature of the Copyrighted Work- This factors insinuates that copying of a published non-fictional work in order to disseminate the information for the benefit of the public falls strongly under the ambit of fair-use. [8]

The snippets are used to disseminate non-fictional information to the public by these tech giants. In addition to this, the Ninth circuit in a landmark judgment opined that “Google’s search engine is a pointer and not a replacement to any publisher.[9] The tech giants help these outlets to improve their market, more than harming it.


3. Amount and Substantiality of the portion used- This factor focuses on the quantity of the work used. The copy will fall under fair use if the quantity of the work used is minimal unless the portion taken is the ‘heart’ of the work.

Google and Facebook use only minimum excerpts but it copies the most relevant and material part of the work which ends up discouraging the users from visiting the publisher’s page.


4. The effect on the potential market- This factor is the most decisive and investigative one. The news outlets have argued that Google and Facebook ads revenue grew immensely in 2020, on the contrary news media publishers’ ads revenue have seen an abysmal decline. [10] However, this does not necessarily insinuate that tech giants rise in ads revenue is based only on disseminating news on their platforms. William Easton, managing director of Facebook in Australia and New Zealand also highlighted that “News makes up less than 4% of the content people see in their News Feed”. Therefore there could be other possible factors too in this rise and decline of ads revenue of tech giants and publishers respectively.

Thus an earnest analysis of these four factors turns the table in the favor of tech giants. They become entitled for fair-use defense under the US Copyright Law.

How would India Deal? – Conclusion

In India, Section 52(1) of The Copyright Act, 1957 provides fair dealing exceptions and is in alignment with exceptions given in Australian copyright law. Thus, the tech giants are not protected under the provision of fair-dealing in India also as there is absence of such exception.

But it is pertinent to mention that Indian courts have been liberal in interpreting fair-dealing. There are judicial precedents where Hon’ble Court has relied on four factors of fair use in determining the dispute[11]. For instance, in Super cassette Industries case[12] the Hon’ble Court relied on the ‘purpose’ factor while rejecting the defense of fair dealing. In another case of ESPN Stars Sports,[13] The Hon’ble court counted on ‘effect’ factor in resolving the dispute. Hence, the courts have time and again passed the judgment based on both the doctrines.

It will be interesting to see how India and other countries would react to this emerging copyright conundrum as there is lack of judicial precedents on the same. In order to maintain free and fair competition in the global market the obsolete laws and its provisions need to run in parallel with the growing technological world.



References -

1. Brian Dean, “Social Network Usage and Growth Statistics: How many People use social Media in 2021?”, Backlinko, 2021

https://backlinko.com/social-media-users

2.Keach Hagey, “Facebook, Google and Publishers are fighting over news. What you need to know”, The Wall Street Journal, 2021

3.Digital Platform Inquiry Report, 2019

https://www.accc.gov.au/system/files/Digital%20platforms%20inquiry%20-%20final%20report.pdf

4.C.C.H Canadian Ltd. V. Law Society of Upper Canada [2004] 1 SCR 339

5. Brette Sember, Understanding the Difference Between Fair Use and Fair Dealing, LEGALZOOM, 2019

https://www.legalzoom.com/articles/understanding-the-difference-between-fair-use-and-fair-dealing

6.Ibid, 5

7. Keach Hagey, “Facebook, Google and Publishers are fighting over news. What you need to know”, The Wall Street Journal, 2021

https://www.wsj.com/articles/google-facebook-and-the-contest-over-paying-for-news-11614107023

8.Rich Stim, Getting Permission- Copyright and Fair Use, NOLO, 2016

https://fairuse.stanford.edu/overview/fair-use/four-factors/

9.Perfeect 10, Inc. v. Amazon.om, Inc.- 508 F.3d 1146 (9th Cir. 2007)

10. Ibid, 8

11. Ayush Sharma, Indian Perspective of Fair Dealing under Copyright Law: Lex Lata or Lex Ferenda?, Journal of Intellectual Property Rights, Vol 14,pp 528, 2009

12. Super cassette Industries v. Nirulas Corner House Ltd [2008 (37) PTC 237 (Del.)]

13.ESPN Stars Sports v. Global Broadcast News Ltd. and Ors.2008(36) PTC 492 (Del).



Authors - Kunwar Abhijeet Singh, Advocate and Prerna Mitra, Advocate.


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